author: JUSTICE HARRISON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES NOLKER, Defendant-Appellant.
    Fifth District
    No. 81-36
    Opinion filed February 19, 1982.
    John H. Reid and Patrick M. Carmody, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Donald Weber, State’s Attorney, of Edwardsville (Martin N. Ashley and Stephen E. Norris, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HARRISON

delivered the opinion of the court:

Charles Nolker appeals from a final order of the circuit court of Madison County which dismissed his original and supplemental petitions for post-conviction relief. This appeal raises two issues. First, Nolker asserts that the presence of a single weapon was used to enhance a misdemeanor escape charge first to felony escape and then to armed violence; Nolker argues that this double enhancement violates his constitutional right to due process of law. Second, Nolker contends that his due process rights were violated because he was charged with, and convicted of, armed violence as a result of an improper statutory construction. We affirm the judgment of the circuit court.

On August 11, 1978, Nolker was charged by information with three criminal offenses. The first count charged him with armed violence asserting that “while armed with a dangerous weapon, a pistol, a Category I weapon [Nolker] committed the felony of Escape * * * or Attempted Escape * * * in that, while in the lawful custody of * * * peace officers of the State of Illinois, and while armed with a dangerous weapon, a gun, he intentionally escaped or attempted to escape from such custody.” (Emphases added.) The third count of the information charged him.with unlawful delivery of less than 500 grams of cannabis and the second count was dismissed. Nolker pleaded guilty to the armed violence and unlawful-delivery counts and received concurrent sentences of seven and three years, respectively. No appeal was taken from the judgment or sentences. On June 4, 1980 Nolker filed a pro se petition for post-conviction relief, and subsequently the public defender’s office filed a supplemental petition on his behalf. The supplemental petition alleged that Nolker “was denied due process of law by judgment and sentence for Armed Violence as set forth in Count I of the information * * * [because:]

a. [t]he charge is fatally defective in that, by its terms, one element is used twice to increase the severity of the charge * * * in contrast to cases interpreting [the relevant statutes].
# e «
d. It is improper to base the offense of Armed Violence upon the attempt to commit a felony.”

The circuit court refused to grant the post-conviction petition, and Nolker appeals from the order dismissing that petition. We will address each of these contentions in turn.

Post-conviction relief is limited to a redress of substantial denials of rights of constitutional dimension as provided in section 122 — 1 of the Post-Conviction Hearing Act. (Ill. Rev. Stat. 1979, ch. 38, par. 122 — 1; see also People v. Hines (1979), 71 Ill. App. 3d 553, 555, 390 N.E.2d 37.) Although the defendant correctly contends that the armed-violence charge resulted from a double enhancement of a misdemeanor by means of an improper statutory construction (see People v. Haron (1981), 85 Ill. 2d 261, 278-79, 422 N.E.2d 627), this contention presents only a question of an erroneous statutory construction, and as such is not of constitutional magnitude. (People v. Radford (1972), 53 Ill. 2d 120, 121, 290 N.E.2d 212.) Post-conviction relief is therefore inappropriate upon this ground.

Because Nolker’s statutory argument does not afford him a basis for relief we must next consider whether the application of the armed-violence statute, section 33A — 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2), may constitutionally be based on the commission of a felony with a dangerous weapon where the underlying felony is itself predicated on the enhancement of a misdemeanor, escape (see Ill. Rev. Stat. 1979, ch. 38, par. 31 — 6(d)), by virtue of the same dangerous weapon. Nolker has cited several cases for our consideration, and we find them distinguishable from the case at bar. Both Haron and People v. Hobbs (1981), 86 Ill. 2d 242, 427 N.E.2d 558, were decided on statutory, rather than constitutional, grounds. Busic v. United States (1980), 446 U.S. 398, 64 L. Ed. 2d 381, 100 S. Ct. 1747, was similarly resolved on statutory and not constitutional grounds. Most recently, the Illinois Supreme Court decided People v. Van Winkle (1981), 88 Ill. 2d 220, on statutory grounds in reliance on Harón. The court expressly refrained from deciding the constitutional validity of basing an armed violence charge on the presence of a weapon during the commission of the predicate felony of aggravated battery (which itself was created by an enhancement of the misdemeanor of simple battery due to the presence of the same weapon). Because no case is directly on point, our analysis of this issue must focus on general principles of constitutional law. Our supreme court recently provided guidance when it stated that “[i]t is the general rule that the legislature, under the State’s police power, has wide discretion to prescribe penalties for defined offenses. * * * ‘We have consistently stated that the standard of a proper exercise of the police power is whether the statute is reasonably designed to remedy the evils which the legislature has determined to be a threat to the public health, safety and general welfare.’ (Heimgaertner v. Benjamin Electric Manufacturing Co. (1955), 6 Ill. 2d 152, 159.)” (People v. Bradley (1980), 79 Ill. 2d 410, 417, 403 N.E.2d 1029.) The purpose of the armed-violence statute is to respond to the growing incidence of violent crime. (People v. Graham (1975), 25 Ill. App. 3d 853, 858, 323 N.E.2d 441, 444.) Doubly enhancing the status of a crime for the reason that a dangerous weapon was present is reasonably consistent with this purpose because violent crimes are facilitated by the presence of dangerous weapons. Therefore we must hold that the armed-violence statute as applied in the instant case is not inconsistent with due process. Nolker has thus not demonstrated a disparagement of a constitutionally protected right, and post-conviction relief is therefore inappropriate; hence, we affirm the judgment of the circuit court.

Affirmed.

WELCH and KASSERMAN, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE KARNS

license: Public Domain

text:
    ILLINOIS CONSOLIDATED TELEPHONE COMPANY et al., Plaintiffs-Appellants, v. ILLINOIS FAIR EMPLOYMENT PRACTICES COMMISSION et al., Defendants-Appellees.
    Fifth District
    No. 81-18
    Opinion filed February 24, 1982.
    E. Allan Kovar and Burr E. Anderson, both of Kovar & Smetana, of Chicago, and Richard F. Record, Jr., of Craig & Craig, of Mattoon, for appellant Illinois Consolidated Telephone Company.
    Tara Levy and James I. Singer, both of Schuchat, Cook and Werner, of St. Louis, Missouri, for appellants Locals 399 and 702, International Brotherhood of Electrical Workers.
    Donald C. Rikli, of Highland, for appellants Donna Law, Deborah Wygal, Barbara Kirbach, and Cheryl J. Pyle.
    Tyrone C. Fahner, Attorney General, of Chicago (Russell C. Grimes, Jr., Assistant Attorney General, of counsel), for appellees.
   PRESIDING JUSTICE KARNS

delivered the opinion of the court:

This appeal arises from an administrative review brought by plaintiffs, Illinois Consolidated Telephone Company and the International Brotherhood of Electrical Workers Local 399 and Local 702, seeking to set aside findings of sex discrimination entered against them by defendant, Fair Employment Practices Commission (FEPC), on April 28, 1975. On November 12,1980, the circuit court of Montgomery County rendered its decision and order sustaining the FEPC. Plaintiffs appeal from that order.

Defendants, Cheryl j. Pyle, Deborah Wygal, Donna Law and Barbara Kirbach, allege that they were wrongfully refused benefits, pursuant to two benefit plans the company maintains, during leaves of absence resulting from pregnancy in 1972 and 1973. The plans are an accident and sickness plan and a group insurance plan. The accident and sickness plan is a noncontributory income continuation plan in event of nonoccupational disability arising from sickness or injury. Absence from work occasioned by pregnancy was explicitly excluded from coverage. This plan was set forth in the collective bargaining agreement between the company and the representative union. Local 399 (IBEW) was the certified bargaining representative until November 15, 1972, when they were succeeded by Local 702 (IBEW). The group insurance plan is a contributory plan which provides coverage for hospital, surgical, X-ray, laboratory and related expenses. A $300 maternity benefit is available under the plan if the employee is married, has purchased spouse coverage, and such coverage is in effect at the time of conception. The plan is not part of the collective bargaining agreement.

Although the actions of the four defendants were consolidated for hearing, the factual situations are different. Defendant Pyle was employed by the company from September 1970 until August 1972. During this period she was not married. She took a leave of absence from March 5, 1972, to May 8, 1972, during which time she gave birth to a child. Pyle received no benefits from the company’s plans. Defendant Wygal began employment with the company on August 14,1969, and was so employed at the time of the hearing. She was married, but did not purchase spouse coverage under the group insurance plan. She took a leave of absence from October 24, 1971, until March 6, 1972, during which time she gave birth to a child. Like Pyle, Wygal received no benefits from the company’s plans. Defendant Law began employment with the company on March 31,1970, and was so employed at the time of the hearing. She was married and had purchased spouse coverage under the group insurance plan for her husband; however, she was divorced in October 1971 and cancelled his coverage. She took a leave of absence from September 6, 1972, until October 9, 1972, during which time she gave birth to a child. She received no benefits. Defendant Kirbach began employment with the company on July 5,1968, and was so employed at the time of the hearing. She was married and had purchased spouse coverage. She took a leave of absence from March 18, 1973, until May 27, 1973, during which time she gave birth to a child. She received the maternity benefit of $300, the maximum allowable pregnancy benefit under the group insurance plan. Kirbach’s leave of absence was after Local 702 (IBEW) had succeeded Local 399 (IBEW) as the certified bargaining representative.

Following the leaves of absence, the individual defendants filed claims against the company and the representative unions with the FEPC, alleging sex discrimination pursuant to section 3(a) and 3(c) of the Fair Employment Practices Act (Ill. Rev. Stat. 1973, ch. 48, par. 853(a), (c)), for the denial of benefits under the company’s plans. The FEPC substantially adopted the recommendations of the hearing examiner who found that the failure to include coverage for pregnancy-caused absence from work in the accident and sickness plan and the failure to provide benefits above a certain maximum maternity benefit in the group insurance plan, violated the Fair Employment Practices Act. (Ill. Rev. Stat. 1973, ch. 48, par. 851 et seq.) The FEPC thereafter ordered the company and Local 399 each to pay Pyle, Wygal and Law one-half of the benefits to which they would have been entitled under both plans had pregnancy been treated the same as any other temporary disability. The company and Local 702 were each ordered to pay Kirbach one-half of the benefits she would have received under the group insurance plan less the $300 already paid. The company was ordered to pay the entire benefit under the accident and sickness.

The company and the unions sought review of the FEPC’s decision in the circuit court of Coles County. The petitions for review were consolidated, and upon motion filed by defendants, venue was transferred to the circuit court of Montgomery County. A motion filed by the company for transfer of venue back to Coles County was denied. On November 12, 1980, the circuit court of Montgomery County rendered a decision and order sustaining the order of the FEPC. Plaintiffs now take this appeal.

Sections 853(a) and (c) of the FEPA provide:

“It is an unfair employment practice:
(a) For any employer, because of the race, color, religion, sex, national origin or ancestry of an individual to refuse to hire, to segregate, or otherwise to discriminate against such individual with respect to hire, selection and training for apprenticeship in any trade or craft, tenure, terms or conditions of employment; or # # #
(c) For any labor organization because of the race, color, religion, sex, national origin or ancestry of any person to discriminate against such person, or to limit, segregate or classify its membership with respect to such person, or to limit such person’s employment opportunities, such person’s selection and training for apprenticeship in any trade or craft, or otherwise to take, or fail to take, any action which affects adversely such person’s status as an employee or as an applicant for employment or as an apprentice, or as an applicant for employment or as an apprentice, or as an applicant for apprenticeships, or such person’s wages, tenure, hours of employment or apprenticeships conditions * * Ill. Rev. Stat. 1973, ch. 38, par. 853(a), (c).

Plaintiffs’ primary argument on appeal is that the trial court erred in finding that the decision of the Illinois Supreme Court in Illinois Bell Telephone Co. v. Fair Employment Practices Com. (1980), 81 Ill. 2d 136, 407 N.E.2d 539, was not dispositive of the instant case. Illinois Bell Telephone Co. is factually similar to the instant case. It involved a refusal, on the part of the company, to extend benefits under an accident and sickness plan for leaves of absence resulting from pregnancy in 1972 and 1973. The four women employees who were denied benefits brought actions for sex discrimination pursuant to section 3(a) of the Fair Employment Practices Act (FEPA) (Ill. Rev. Stat. 1973, ch. 48, par. 853(a)).

In Illinois Bell Telephone Co. the actual written plan was not included in the record, but according to the stipulation filed by the parties it operated as a disability plan for employees for periods of absence resulting from “medically approved sicknesses” and “off-the-job injuries.” The plan excluded pregnancy from coverage but did include complications arising from pregnancy.

In its analysis in Illinois Bell Telephone Co., the supreme court noted that “[wjhere a claim of discrimination is made, an initial inquiry is whether the party claiming discrimination is similarly situated with those said to be receiving preferential treatment. [Citations.] If the complaining party is not similarly situated with whom he or she seeks to be compared, a vital prerequisite to a finding of discrimination is lacking.” (81 Ill. 2d 136, 140, 407 N.E.2d 539, 541.) In determining whether the parties in Illinois Bell Telephone Co. were similarly situated, the court examined the purpose of the plan and found it was intended to provide benefits for “medically approved sickness” and “off-the-job injuries.” Relying on its decision in Winks v. Board of Education (1979), 78 Ill. 2d 128, 398 N.E.2d 823, the court held that pregnancy is not a sickness and that, “[i]t was therefore improper for the FEPC to compare pregnancy with the sicknesses covered by the plan.” 81 Ill. 2d 136, 141, 407 N.E.2d 539, 541.

Defendants argue, and the trial court found, that the facts in the instant case “more closely resemble” those in Minnesota Mining & Manufacturing Co. v. State (Minn. 1979), 289 N.W.2d 396, appeal dismissed (1980), 444 U.S. 1041, 62 L. Ed. 726, 100 S. Ct. 725; and Massachusetts Electric Co. v. Massachusetts Commission Against Discrimination (1978), 375 Mass. 160, 375 N.E.2d 1192. These cases stand for the proposition that a comprehensive disability plan which inexplicably excludes pregnancy constitutes sex discrimination. The Supreme Court, in Illinois Bell Telephone Co., when confronted with the same argument, found these cases distinguishable in that they involved disability plans of broader coverage whereas the plan in Illinois Bell only pm-ported to cover sickness.

A review of the sickness and accident plan in the instant case reveals that it is strikingly similar to the plan in Illinois Bell Telephone Co. The purpose of the plan is to provide a noncontributory income continuation benefit when an employee is unable to work because of a “nonoccupational accident or sickness.” The only arguable distinction between the plans involves coverage for complications arising from pregnancy. It is apparent from the stipulation in Illinois Bell Telephone Co. that the plan explicitly included complications arising from pregnancy whereas no such explicit inclusion is present in the instant case. Plaintiffs’ counsel, on oral argument, stated that the plan covers complications resulting from pregnancy because this would fall within the definition of sickness. The four women involved in this litigation had normal pregnancies free from complications; thus, because a controversy never arose, we can not speculate as to what the coverage would have been. Therefore, the decision of the Supreme Court in Illinois Bell Telephone Co. is dispositive of the issues in the instant case regarding the accident and sickness plan. Specifically, we find that the plan was not discriminatory in that it was a noncomprehensive plan designed to cover “sickness” which could properly exclude pregnancy from coverage.

A question remains as to whether the group insurance plan discriminates on the basis of sex in violation of section 3(a) and 3(c) of the FEPA. (Ill. Rev. Stat. 1973, ch. 48, par. 853(a), (c).) This contributory plan provides group life, hospital, surgical, X-ray and laboratory, and major medical expense insurance.

The hospital, surgical and major medical plan provides benefits when a “non-occupational accident or sickness, other than pregnancy, results in hospital confinement.” Thus, as in Illinois Bell Telephone Co., the group insurance plan in the instant case could properly exclude pregnancy from coverage. However, the plan does provide for a limited ($300) maternity benefit if certain conditions are met. The employee must be married, have enrolled the spouse in the plan and be covered at the time of conception. The maternity benefit extended to nine months following termination of employment, provided benefits would have been payable had employment continued. The trial court found the group insurance plan to be discriminatory for two reasons:

“(1) The $300 limitation only applies to disabilities related to pregnancy; only females can have pregnancy related disabilities; the $300 limitation is sex discrimination because it is imposed in cases of female disabilities;
(2) Only pregnancy related disabilities require spousal enrollment for receipt of benefits; pregnancy is a disability limited to females; thus the plan is sex discriminatory because it requires spousal enrollment only in cases of disabilities limited to females.”

After review of the group insurance plan, we conclude that it does discriminate between married and unmarried female employees, but this is not sex discrimination. The limited maternity benefit is provided for both married female and male employees who enroll their spouses. A male employee who is married, enrolls his spouse and is covered at the time of conception, is eligible for the maternity benefit. Although this would more appropriately be denoted a “paternity” benefit, it is not discriminatory on the basis of sex in that male and female employees are treated equally.

Plaintiff company also contends that the trial court erred in granting defendants’ motions for transfer of venue and that plaintiffs’ subsequent motion for retransfer of venue was erroneously denied. Having otherwise disposed of this case, we find it unnecessary to reach that issue.

The judgment of the circuit court of Montgomery County is reversed.

Reversed.

KASSERMAN and JONES, JJ., concur.


text:
    M. E. BETTS, Plaintiff-Appellee, v. O. W. RAY et al., Defendants-Appellants.
    Fifth District
    No. 81-19
    Opinion filed February 24, 1982.
    Russell H. Classen, of Belleville, and Darrell Dunham, of Carbondale, for appellants.
    Medlin, Zimmer and Medlin, of Carbondale (James R. Zimmer, of counsel), for appellee.
   PRESIDING JUSTICE KARNS

delivered the opinion of the court:

Plaintiff, M. E. Betts, brought an action for declaratory judgment against defendants, Dr. Ray E. Dalton and O. W. Ray, in the circuit court of Jackson County. Thereafter, Betts, without notice to Dalton, obtained a preliminary injunction enjoining Dalton from proceeding with a related action against Betts in the circuit court of St. Clair County. After a hearing, the court entered judgment denying Dalton’s motion to vacate the preliminary injunction and granted a permanent injunction in favor of Betts. This appeal followed.

On September 26,1980, Betts filed a complaint for declaratory judgment against Dalton and O. W. Ray in the circuit court of Jackson County seeking a declaration that Betts was the legal owner of a 1974 GM motor home and was entitled to a certificate of title. The complaint stated that in December 1978, Betts went to Ray’s used-car lot, located in Belleville, to inquire about the purchase of a motor home. Betts and Ray negotiated for the sale of the 1974 GM motor home and on December 31, 1978, Ray delivered the motor home to Betts at his home located in Jackson County. Betts and Ray signed a bill of sale which recited that the motor home was traded for $3,000 and certain vehicles and equipment for a total purchase price of $27,000. The complaint alleged that Ray represented to Betts that he was the owner of the motor home, but that the certificate of title was located temporarily at a Belleville bank. The bill of sale stated that Ray was to deliver the title to Betts; title was not delivered.

In the complaint, Betts stated on information and belief that Dalton had engaged Ray to sell the motor home at Ray’s used-car lot and that Dalton now claimed an interest in the motor home. The complaint stated that prior to purchasing the motor home from Ray, Betts did not have knowledge of Dalton’s interest in the motor home.

On October 27, 1980, Dalton filed an answer to the complaint denying Betts’ claim of ownership and asserting as an affirmative defense the pendency of a replevin action filed in St. Clair County on September 19, 1979, against Ray and amended to add Betts as a defendant on September 25, 1980. Thereafter, Betts filed an answer denying the allegations raised in Dalton’s affirmative defense.

On November 5, 1980, the trial court found Ray in default and entered judgment against him.

On December 3, 1980, without notice to Dalton, Betts filed a motion for a preliminary injunction to prohibit Dalton, his attorney and the sheriff of Jackson County from taking any further action in and on account of the St. Clair County action for replevin. In the verified motion, Betts stated that at the time of filing the complaint for declaratory judgment in Jackson County, he had no knowledge of the pending St. Clair County action. The motion further stated that Betts was not served with process and did not receive notice of the St. Clair County action. It alleged that on December 1, 1980, a Jackson County deputy sheriff informed Betts that he was looking for the motor home because he had a writ of replevin to serve upon locating the property. The motion stated that the writ of replevin was not served on Betts. The immediate and irreparable injury alleged in the motion to result from the named parties’ conduct was the unlawful harassment of Betts and the threatened unlawful seizure of his property. The same day, after an ex parte hearing, the trial court granted the preliminary injunction and set the matter of the permanent injunction for hearing on December 11, 1980.

The brief record of proceedings of the hearing on December 11, 1980, indicates that the parties did not present any evidence. After argument, Dalton filed a motion to vacate the preliminary injunction. That motion was denied and the court granted the permanent injunction in favor of Betts. On January 14, 1981, Dalton filed a notice of appeal. Thereafter, the action for declaratory judgment proceeded and on April 9,1981, the court entered judgment vesting ownership of the motor home in Betts. (We note that Dalton has appealed to this court from that judgment.) On April 13, 1981, Betts filed in this court a motion to dismiss this appeal as moot which was granted. After rehearing, the appeal was reinstated on June 23, 1981.

On appeal Dalton contends that the trial court was without jurisdiction to enjoin him from proceeding in the pending St. Clair County action which was commenced prior to the Jackson County action and that the instant appeal is not moot because the filing of the notice of appeal on January 14, 1981, divested the trial court of jurisdiction, and, therefore, the judgment entered on April 9, 1981, is null and void. Because we find that the appeal has been rendered moot, it is not necessary to resolve the issues raised by Dalton’s initial contention.

At the outset, we note that, contrary to the parties’ interpretation of the nature of the order appealed from, the trial court’s order granting the permanent injunction was a final judgment and not an interlocutory order. The order was entered after a hearing on the merits of the subject of the injunction and permanently enjoined Dalton from proceeding in the St. Clair County action. (Statistical Tabulating Corp. v. Hauck (1972), 5 Ill. App. 3d 50, 282 N.E.2d 524.) The trial court’s order contained an express written finding that there was no just reason for delaying appeal. Although the pleadings presented issues in addition to those resolved by the injunction, that is, the merits of the declaratory judgment action, the appeal is of a final judgment pursuant to Supreme Court Rule 304 (73 Ill. 2d R. 304) and not an interlocutory appeal pursuant to Supreme Court Rule 307 (73 Ill. 2d R. 307).

Dalton’s contention is based on the general rule that once an appeal has been perfected to this court, the jurisdiction of the trial court ceases. The trial court, however, retains jurisdiction to hear and determine matters arising independent of and unrelated to the subject matter on review where a supersedeas has not been perfected. (Cygnar v. Martin-Trigona (1975), 26 Ill. App. 3d 291, 325 N.E.2d 76.) Here, the subject matter on review was whether there was a sufficient showing to sustain the order of the trial court granting the permanent injunction in favor of Betts. The merits of the declaratory judgment action were independent of the subject matter on appeal. The trial court had the jurisdiction to proceed to trial of the declaratory judgment action in the absence of a stay, which was never requested in the trial court or in the reviewing court. Because the trial court properly exercised its jurisdiction and proceeded to enter judgment on the declaratory judgment complaint, the instant appeal of the permanent injunction has been rendered moot.

A moot case is one which seeks to determine an abstract question or a judgment which when rendered cannot have any practical legal effect on the controversy. (Dobbs v. Chase (1981), 94 Ill. App. 3d 177, 418 N.E.2d 919.) The appeal in the instant case is moot because no effectual relief can be granted to Dalton assuming that the trial court wrongfully restrained him from proceeding in the St. Clair County action. Even if we were to reverse the judgment granting a permanent injunction in favor of Betts and Dalton proceeded in the St. Clair County action, the April 9, 1981, judgment in favor of Betts would be res judicata in the St. Clair County action. Clearly, an appellate finding in favor of Dalton on the issue of the propriety of the trial court’s grant of injunctive relief cannot now have any practical legal effect on the controversy, that is, the disputed ownership of the motor home. If Dalton had obtained a stay of the pending proceedings, then the result would have been different.

The dismissal of this appeal as moot is not meant to suggest approval of the trial court’s issuance of the permanent injunction, or the ex parte issuance of the preliminary injunction. On the contrary, we are of the opinion that the action taken by the circuit court of Jackson County was highly improper and that the permanent injunction was issued improperly. Section 48(1) (c) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 48(1)(c)), which appellant had no opportunity to invoke, or did not invoke, because of the ex parte nature of the initial proceedings in Jackson County, allows for, and may well require, the dismissal of an action where there is a prior action pending between the same parties for the same cause. (Energy Cooperative, Inc. v. Northern Illinois Gas Co. (1981), 93 Ill. App. 3d 884,417 N.E.2d 1049; Gerber v. First National Bank (1975), 30 Ill. App. 3d 776, 332 N.E.2d 615.) (We need not here decide that the matters involved in the two proceedings involved the “same cause.” See Skolnick v. Martin (1964), 32 Ill. 2d 55, 203 N.E.2d 428, cert, denied (1965), 381 U.S. 926, 14 L. Ed. 2d 684, 85 S. Ct. 1562; Hutter v. Lake View Trust & Savings Bank (1977), 54 Ill. App. 3d 653, 370 N.E.2d 47.) If Betts found fault with the action pending in St. Clair County, the proper course would have been for him to bring these matters before that court by appropriate pleadings.

The motion for injunctive relief stated that Betts was being subjected to harassment and that his property was threatened with unlawful seizure. There was no showing, however, that Dalton filed the action in St. Clair County in bad faith, such suit being commenced prior to the filing of the Jackson County action. In addition, the alleged unlawful seizure of Betts’ property was premised on the fact that service of process had not been obtained on Betts in the St. Clair County action. The record, however, contained nothing to suggest that such service could not have been obtained if Dalton had not been enjoined from proceeding with the St. Clair County action.

For the foregoing reasons, the appeal from the judgment of the Circuit Court of Jackson County is dismissed.

Appeal dismissed.

KASSERMAN and JONES, JJ., concur.


text:
    JOE HICKS et al., Plaintiffs-Appellants, v. ROBERT J. WILLIAMS, Director of the Department of Agriculture, et al., Defendants-Appellees.
    Fifth District
    No. 80-554
    Opinion filed March 1, 1982.

      Edward J. Heller, of Murphysboro, for appellants.
    Tyrone C. Fahner, Attorney General, of Chicago (Karen Konieczny, Assistant Attorney General, of counsel), for appellees.
   PRESIDING JUSTICE KARNS

delivered the opinion of the court:

Plaintiffs, grain producers in Illinois, brought an action in the circuit court of Jackson County against the director, assistant director, officers and employees of the Illinois Department of Agriculture and Aetna Insurance Company for damages allegedly sustained when a grain elevator became insolvent. We affirmed the trial court’s dismissal of the action against Aetna Insurance Company. (See Hicks v. Aetna Insurance Co. (1981), 97 Ill. App. 3d 828, 423 N.E.2d 584.) The remaining defendants moved to strike the second amended complaint and dismiss the action for, among other things, failure to state a cause of action. Defendant’s motion was granted and plaintiffs appeal, contending the following: (1) that as provided by statute (Ill. Rev. Stat. 1977, ch. 111, par. 301 et seq.) (hereinafter referred to as the Grain Dealers Act), defendants owed a duty not only to the State of Illinois, but also to individual grain producers; (2) that the distribution of the dealer’s surety bond, as provided in section 3 of the Grain Dealers Act, was not an exclusive remedy; (3) that the complaint alleged malicious breach of duty; and (4) that the doctrine of sovereign immunity did not bar the suit. Because we find that the complaint does not state a cause of action, we do not reach plaintiff’s fourth contention.

On December 11,1979, plaintiffs filed their initial complaint. Defendants filed a motion to dismiss the complaint which was granted, but with leave to amend. In their amended complaint filed on July 11, 1980, plaintiffs stated that from June 15,1976, to December 12, 1978, they sold grain on credit to Murphysboro Grain Elevator in Murphysboro, Illinois. On or about March 1, 1978, the grain elevator became insolvent and was declared insolvent and closed on December 12, 1978. A petition in bankruptcy was filed on January 12, 1979. The complaint alleged that defendants breached the statutory duty of protecting the grain producers from financial loss as provided in the Grain Dealers Act (Ill. Rev. Stat. 1977, ch. 111, par. 301 etseq.), and as a result, plaintiffs suffered damages in the amount of the value of the grain deposited at the grain elevator. Plaintiffs supported their claim to relief by alleging essentially the following acts or omissions:- (1) that defendant allowed the grain elevator to operate for a period of time without a license and without posting a surety bond as required by the Act; (2) that defendants, having knowledge that the grain elevator was operating without a license, failed to hold a hearing on the expiration of the license as allegedly required by section 6 of the Act and failed to report the grain elevator’s continued operation to the State’s Attorney as allegedly required by section 9 of the Act; (3) that defendants failed to detect the insolvency of the grain elevator after a field audit, and (4) that defendants failed to protect the producers’ interests after receipt of verbal notice from a producer that Tri-State Grain Company, operating as a subsidiary of the grain elevator, would be one month tardy in making payments for grain purchased. Plaintiffs alleged that they relied on the defendants’ performance of their statutory duties and that defendants’ breach thereof caused plaintiffs’ damages. The complaint characterized defendants’ alleged breach of their duties as “negligent,” “wanton and willful,” “intentional,” “derelict,” and “with reckless disregard.”

Following argument and the submission of memoranda, the trial court ruled that the complaint was insufficient in law because the Grain Dealers Act created no duties owed to individuals other than to the citizens of Illinois as a whole and that plaintiffs failed to plead and could not plead malice or corrupt conduct to state a cause of action at common law.

On appeal, plaintiffs argue that the second amended complaint was sufficient to state a cause of action. Their initial contention in that regard is that the trial court erred in finding that the duties imposed on defendants by the Grain Dealers Act (Ill. Rev. Stat. 1977, ch. 111, par. 301 et seq.) were owed to the State of Illinois and not to the individual grain producers. As a corollary to their initial contention, plaintiffs argue that the distribution of the dealers’ surety bond as provided in section 3 of the Grain Dealers Act was not intended as an exclusive remedy for the redress of financial loss caused to the grain producers. We have examined the authorities cited by plaintiff and conclude that they are not supportive of the plaintiffs’ arguments.

Plaintiffs discuss the legislative history of “An Act to regulate public warehouses * * *” (Ill. Rev. Stat. 1953, ch. 114, par. 189 et seq.) (hereinafter referred to as the Public Warehouses Act) in support of the contention that the alleged breach of the defendants’ statutory duties constituted a private injury. The Public Warehouses Act was enacted pursuant to article 13 of the 1870 Illinois Constitution and was repealed by the Public Grain Warehouse and Warehouse Receipts Act (Ill. Rev. Stat.

1955, ch. 114, par. 214.1 et seq.). We are of the opinion that the history of the repealed Public Warehouses Act is not dispositive of the issue before the court. No provision of the Grain Dealers Act requires a different conclusion. Moreover, the central focus of plaintiffs’ discussion of the Public Warehouses Act is the official bond requirement. Even though officials of the Department of Agriculture similarly are required to execute an official bond (Ill. Rev. Stat. 1977, ch. 127, pars. 15, 40 et seq.), this requirement does not support plaintiffs’ argument. As we noted in Hicks v. Aetna Insurance Co. (1981), 97 Ill. App. 3d 828, 423 N.E.2d 584, at common law, a third party could not bring an action on an official bond in the absence of specific authority. We find nothing in the Grain Dealers Act that indicates the legislature’s intention to provide a private cause of action by the official bond requirement.

Plaintiffs also cite Tcherepnin v. Franz (7th Cir. 1978), 570 F.2d 187. In Tcherepnin, the court held the director of the Illinois Department of Financial Institutions liable to the depositors of a savings and loan institution for breach of certain statutory duties imposed on the director by the Illinois Savings and Loan Act (Ill. Rev. Stat. 1963, ch. 32, par. 701 et seq.). The court found nothing in the Act to suggest that the statutory duties of the director were owed only to the State of Illinois. The court reasoned that the repeated references to the “protection of the Association” in defining the director’s duties indicated that these duties were owed to the depositors.

Tcherepnin, however, is distinguishable from the instant case because the Illinois Savings and Loan Act and the Grain Dealers Act are different in several important respects. Section 6 of the Grain Dealers Act (Ill. Rev. Stat. 1977, ch. 111, par. 306) defines the duties of the department officials. As contrasted with the Illinois Savings and Loan Act, section 6 of the Grain Dealers Act does not contain repeated references to the protection of the grain producers. In addition, the supervisory duties and corresponding powers of the department officials defined in the Grain Dealers Act are more limited than those of the director of the Illinois Department of Financial Institutions. Finally, as contrasted with the Illinois Savings and Loan Act, the Grain Dealers Act contains a provision which suggests that the officials’ statutory duties are owed to the State of Illinois and not to private individuals. Section 3 of the Grain Dealers Act requires that the grain dealers post a surety bond made payable to the State of Illinois for the benefit of the grain producers. The statute further provides that when the director determines that a grain dealer has defaulted on payments due the producers, the director shall distribute to the producers the dealer’s surety bond. Where a statute creates a new right unknown to the common law, and at the same time gives a remedy for its enforcement, the remedy so prescribed is exclusive. (See Kosicki v. S. A. Healy Co. (1942), 380 Ill. 298, 44 N.E.2d 27.) The new right created by the Grain Dealers Act is the grain producers’ right to the benefit of the dealer’s surety bond; the remedy is distribution of the bond by the director of the Department of Agriculture. The statute suggests that it was the intention of the legislature to relieve any financial loss suffered by the grain producers by the department’s distribution of the dealer’s surety bond and not by individual prosecution of damage actions against the department officials. Therefore, we find that the Grain Dealers Act imposed upon defendants duties owed to the State of Illinois and not to plaintiffs as individuals.

In addition, we are of the opinion that plaintiffs not only misconstrue the nature of defendants’ duties, but also misconstrue what these statutory duties are. The complaint alleged that defendants had a duty to hold a hearing on the expiration of the grain elevator’s license pursuant to section 6 of the Act. Section 6 does discuss a hearing requirement but the statutory provisions suggest that the hearing requirement is to protect elevator operators from the loss of their licenses without an opportunity to be heard. The complaint also alleged that section 9.of the Act mandated that defendants report any violations of the Act to the State’s Attorney. Section 9 provides that upon receiving notice of a violation, the State’s Attorney shall institute proceedings against the violator. It does not mandate that department officials report violations to the State’s Attorney. Finally, the complaint alleged that defendants did not take any action to protect the grain producers’ interest after receiving verbal.notice of Tri-State Grain Company’s cash flow problem. Section 6 of the Act, however, requires that notice to the department be made by verified complaint in writing setting forth the pertinent facts.

As an independent basis for affirming dismissal of this action, we note that the doctrine of public officials’ immunity renders defendants immune from suit. The public officials immunity doctrine provides that public officials are not liable for discretionary acts performed within the scope of their authority and not resulting from malicious motives. (Mora v. State of Illinois (1977), 68 Ill. 2d 223, 369 N.E.2d 868.) Where the act is ministerial in nature, however, the official will be liable for the negligent performance of that duty.

Plaintiffs argue that defendants negligently performed ministerial duties or, alternatively, that the complaint alleges malicious breach of defendants’ discretionary duties. In support of their contentions, plaintiffs rely principally on Tcherepnin v. Franz (7th Cir. 1978), 570 F.2d 187. Whether an act is discretionary, or merely ministerial, depends upon a finding that the act was essentially governmental in character. (Madden v. Kuehn (1978), 56 Ill. App. 3d 997, 372 N.E.2d 1131.) Plaintiffs allege a breach of defendants’ statutory duties relating to the licensing and inspection of a grain elevator. The official acts of licensing and inspecting a business are governmental in character and are unique to the particular public office. The court’s reasoning in Tcherepnin supports our characterization of these duties as discretionary. That the court in Tcherepnin viewed the duty to supervise the savings and loan association as discretionary is apparent from their inquiry into whether the defendant had maliciously breached this duty. Licensing and inspecting are similar to supervising in terms of their essential governmental character.

By way of analogy, we note that section 2 — 206 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1977, ch. 85, par. 2 — 206) recognizes the importance of protecting public employees in the exercise of their judgment as it relates to licensing decisions. It provides the following:

“A public employee is not liable for an injury caused by his issuance, denial, suspension or revocation of or by his failure or refusal to issue, deny, suspend or revoke, any permit, license, certificate, approval, order or similar authorization where he is authorized by enactment to determine whether or not such authorization should be issued, denied, suspended or revoked.”

Finally, plaintiffs argue that the characterization of the defendants’ conduct as “derelict” and “with reckless disregard” is sufficient to state a cause of action for malicious breach of defendants’ duties. In Tcherepnin, the court stated that it was not necessary to use “malicious” or “corrupt” in the complaint where the conduct alleged necessarily entailed the deliberate commission of a wrongful act. The defect in the complaint here is different from that raised in Tcherepnin. The complaint does not contain specific factual allegations, which if proven, would establish that the named officials acted with malicious intent in failing to protect the grain producers’ financial interests. Pleadings which characterize acts and state conclusions rather than stating facts are insufficient. (Betts v. Department of Revenue (1979), 78 Ill. App. 3d 102, 396 N.E.2d 1150.) Plaintiffs failed to allege that defendants intentionally breached ministerial duties.

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

Affirmed.

KASSERMAN and HARRISON, JJ., concur.


author: JUSTICE WELCH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ORVID GARRETT, Defendant-Appellant.
    Fifth District
    No. 80-490
    Opinion filed March 2, 1982.

      John H. Reid and Richard J. Bennett, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    John Clemons, State’s Attorney, of Murphysboro (Robert J. Biderman and Debra A. Buchman, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE WELCH

delivered the opinion of the court:

The defendant was arrested and charged with attempted murder, burglary, and unlawful use of weapons, alleged to have occurred on April 10,1980. After his motion for discharge pursuant to the speedy trial statute was denied, he was brought to trial on September 15, 1980. He tried to discharge his lawyer on the date of the trial and represent himself and moved orally for a continuance of the trial date “in order to familiarize himself with the case.” The motion for continuance was denied, and the defendant elected to keep the lawyer he had. The defendant waived a jury and took part in a stipulated bench trial. He was found guilty on all three charges and was subsequently sentenced.

On appeal he challenges the denial of his motion for discharge under the speedy-trial statute, asserts that his constitutional right to represent himself was violated by the court’s denial of his request for a continuance on the day of trial, and alleges that he did not knowingly and voluntarily stipulate to the State’s evidence because the court failed to admonish him pursuant to Supreme Court Rule 402(a) (73 Ill. 2d R. 402(a)).

Orvid Garrett was arrested April 10, 1980, and held in custody until his trial. The speedy trial provision of the Criminal Code of 1961 provides that a defendant must be tried within 120 days of the date he is taken into custody unless he causes delay or unless the State is granted an extension not to exceed 60 more days. (Ill. Rev. Stat. 1979, ch. 38, par. 103 — 5(a).) The 120th day of Orvid Garrett’s incarceration was August 8, 1980. On June 5, 1980, the defendant was granted a continuance of 30 days, not opposed by the State, which extended the trial period until September 8, 1980, because September 7,1980, fell on a Sunday. On June 27, 1980, the court set the trial for August 4, 1980, — well within the speedy trial limits. On July 8, 1980, the State filed a motion for continuance, asking that the case “be removed from the August Jury Docket and rescheduled at a later date.” The motion stated:

(1) after the prosecution received, on June 27, 1980, notice of the August 4, 1980, trial date, it notified its witnesses of that;
(2) Joseph Furman advised the prosecution that “he would be unavailable for trial during the month of August since he will be in California the entire month;”
(3) Mr. Furman “is a material witness for the people and necessary for the prosecution of this case.”

The motion did not indicate either that it was brought pursuant to the general continuance provision (Ill. Rev. Stat. 1979, ch. 38, par. 114 — 4(c)(2)) or that an extension of the speedy trial term was requested under section 103 — 5(c) of the Code of Criminal Procedure of 1963 (111. Rev. Stat. 1979, ch. 38, par. 103 — 5(c)). A hearing on the motion was had on July 24,1980. The defense indicated it was ready for trial and declined to stipulate to what Joseph Furman’s testimony would be. It opposed the motion for continuance. The court granted the State’s motion “in accordance with Section 114 — 4(c)(2)” and set the case on the September docket. The court indicated the delay would be approximately 30 days. On July 28, 1980, the case was set for trial on September 15, 1980.

On September 10, 1980, the defendant filed a motion for discharge pursuant to the speedy trial statute, alleging that the time period expired September 8, 1980. At the hearing on the motion for discharge on September 11, the State responded that its motion for continuance of July 8, 1980, acted to extend the speedy-trial time period. The trial court denied the motion for discharge and made findings regarding the July 8 motion, reduced to a written order, that: (1) the prosecution had exercised, without success, due diligence in obtaining evidence which was material to its case; (2) there had been reasonable grounds to believe that the evidence would be available at a later date; and (3) the continuance had been granted pursuant to section 103 — 5(c) (Ill. Rev. Stat. 1979, ch. 38, par. 103 — 5(c)), and that the case came on for jury trial within the statutory maximum for extension of time provided for in section 103 — 5.

The defendant urges that People v. Toolate (1978), 62 Ill. App. 3d 895, 379 N.E.2d 927 controls the case and that since the State did not request an extension of time for trial under section 103 — 5(c) at the time of its motion for continuance, the speedy-trial period was not extended by the continuance. In Toolate, unlike the case before us, the trial court did not make findings under section 103 — 5(c) that the prosecution had exercised due diligence to obtain the missing evidence or that there was any prospect of obtaining the evidence at a later date if the time period for trial were extended. As Mr. Justice Green indicated in his concurring opinion in Toolate, no showing was made that the missing witness could not be brought before the court for a jury trial within the 120 days. In the present case the prosecution did indicate to the court that the missing witness would be gone for the whole month of August. The implication was that he would be back in September and the court set the case on the September docket, a delay of about 30 days. In fact the case came to trial on September 15, 1980, only one week into the extension period.

“Generally, the determination of whether the statutory prerequisites of section 103 — 5(c) have been satisfied rests within the sound discretion of the trial court, and its determination will not be disturbed on review unless there has been a clear abuse of that discretion.” (People v. Folenga (1980), 83 Ill. App. 3d 210, 214, 404 N.E.2d 935, 938, appeal denied (1980), 81 Ill. 2d 595.) “It has been held that * * 0 one motion can be both a motion for an extension under section 103 — 5(c) and a motion to continue under section 114 — 4.” (83 Ill. App. 3d 210, 214.) We find no “clear abuse of discretion” on the part of the trial court in denying the defendant’s motion for discharge.

The hearing on the motion for discharge was had on Thursday, September 11,1980. When the motion was denied the defendant’s counsel told the court that the defendant had asked him to withdraw. The court denied the request. On Friday, September 12, 1980, the defendant filed two hand-printed motions, not accompanied by affidavits, one entitled “Motion Waiver of Counsel, Ch. 110 — A—401,” and one a motion for continuance of 30 days “to familarize [sic] myself with my case.” On Monday, September 15,1980, the case was called for trial. The trial judge asked the defendant if he still wished to represent himself. Defense counsel replied that the defendant did wish to represent himself and that he wanted a continuance to familiarize himself with the case and to subpoena a witness whom the defense counsel had not subpoenaed. The trial court admonished the defendant in detail about the range of penalties applicable to the offenses with which he was charged and the difficulty of representing himself. He gave the defendant time to talk with his appointed counsel. The defendant persisted in his demand to represent himself. The trial court granted the motion.

The motion for continuance, filed September 12,1980,. and presented September 15, 1980, recited that it is pursuant to séction 14 — 4 (Ill. Rev. Stat. 1979, ch. 38, par. 114 — 4). The only ground stated for the continuance was for the defendant to familiarize himself with the case. No reason such as trial in another case or illness of the defendant was put forward to explain why, after five months, the defendant was not familiar with his own case. Section 114 — 4(e) states: “All motions for continuance are addressed to the discretion of the trial court and shall be considered in the light of the diligence shown on the part of the movant.” (Ill. Rev. Stat. 1979, ch. 38, par. 114 — 4(e).) The trial court denied the defendant’s motion for continuance but ordered that a subpoena issue for the witness the defendant requested. While arguing a motion in limine filed by counsel before he was discharged, the defendant changed his mind and asked to have his appointed counsel back to represent him if the case were going to trial that day.

The defendant charges that the trial court’s denial of his motion for continuance on the day of the trial effectively denied him the right to represent himself since he did not have enough time to prepare an adequate defense and thus have effective assistance of pro se counsel. This is a difficult situation for a trial court. A defendant does have the right to represent himself (Faretta v. California (1975), 422 U.S. 806, 45 L. Ed. 2d 562, 95 S. Ct. 2525), however inadvisable that course may be. The trial court recognized that right in this case and granted the defendant’s motion for waiver of counsel. The court is not then automatically required to grant an extension of time for trial, however. Section 114 — 4(e) leaves the question of a continuance to the sound discretion of the court. As the court observed, the defendant had had more than five months with which to become familiar with his case. We do not find an abuse of the court’s discretion in the denial of a continuance.

After a recess to allow the defendant to obtain nonjail clothes before appearing before a jury, the case resumed. The defendant’s counsel informed the trial court that the defendant wished to waive a jury. The court admonished the defendant regarding his right to a jury and questioned him at length to be sure the defendant knew what he was giving up. After the court accepted the waiver of a jury, the defendant’s counsel informed the court that they would stipulate to the State’s evidence. The State’s Attorney did not have a written stipulation prepared but went through his reports and orally summarized the evidence he would present at a trial. The court inquired of defense counsel, with the defendant present in the courtroom, if the facts were correct as presented by the State. In addition to offering an opportunity to challenge the facts, the court allowed the defense counsel to make a closing argument. Counsel argued that the facts did not establish the element of intent in the attempted murder charge beyond a reasonable doubt. The defendant was convicted of all three charges.

On appeal defendant asserts that the stipulated bench trial was tantamount to a plea of guilty and as such he was entitled to be admonished pursuant to Supreme Court Rule 402 (73 Ill. 2d R. 402).

As we have observed in People v. Daminski (1980), 80 Ill. App. 3d 903, 400 N.E.2d 708, a stipulated bench trial is not in every case tantamount to a plea of guilty. “In a plea of guilty, the defendant waives all errors except those of a jurisdictional nature [citation]; while in a stipulated bench trial, the defendant does not waive any errors preserved by him.” (80 Ill. App. 3d 903, 905, 400 N.E.2d 708, 710.) We were again presented with the issue and again decided, in People v. Zozak (1981), 101 Ill. App. 3d 590, 593, 428 N.E.2d 524), that because the defendant preserved for appeal by the stipulated trial an issue which would have been waived by a plea of guilty, the trial court was not obligated to admonish the defendant under Rule 402.

In this case, the defendant preserved the issue of the motion for discharge under the speedy-trial statute. The court did admonish the defendant regarding the knowing and voluntary waiver of a jury trial and his choice of retaining his defense counsel instead of going to trial pro se. Earlier in the day the court had admonished the defendant at length regarding the seriousness of the charges against him. Later, at the sentencing hearing, the court questioned the defendant regarding his understanding of the stipulated bench trial. Considering the entire record, we find no error by the trial court regarding the stipulated bench trial.

We therefore affirm.

Affirmed.

KARNS, P. J., and HARRISON, J., concur.


author: JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. RICK S. GRANT, Defendant-Appellee.
    Third District
    No. 81-77
    Opinion filed February 19, 1982.
    Modified on denial of rehearing April 7, 1982.

      John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Robert Agostinelli and Michael Filip ovic, both of State Appellate Defender’s Office, of Ottawa, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

The defendant, Rick S. Grant, was arrested on August 20, 1980. A grand jury indicted him on August 26, 1980, on charges of arson and aggravated assault. (Ill. Rev. Stat. 1979, ch. 38, pars. 20 — 1(a) and 12 — 2(a)(1), respectively.) By February 4, 1981, the defendant had not been tried. The defendant moved for a dismissal of the indictment on the grounds that he was denied a speedy trial. (Ill. Rev. Stat. 1979, ch. 38, pars. 103 — 5(a), (d); 114 — 1(a)(1).) A hearing on the motion was held February 5, 1981, and the trial court granted the motion to dismiss. The defendant was ordered discharged from further proceedings. The People appeal on the grounds that the defendant occasioned the delay, such that he was not denied a speedy trial.

A recitation of the facts is necessary only insofar as they pertain to the issue on appeal. Following the indictment, on August 27, 1980, the cause was continued to September 3, 1980, upon the defendant’s motion for additional time to retain private counsel. However, the defendant did not retain private counsel, and a public defender was appointed to represent him. The defendant was arraigned and pleaded not guilty to both counts on September 3,1980. A jury trial was set for October 13,1980.

On September 26,1980, the defendant gave notice of his intention to plead the defense of insanity. On October 6, 1980, the defendant filed a motion for payment of expert witness fees, alleging that he was indigent and that he needed the services of a qualified psychiatrist to prepare his defense. The motion was granted on October 8, 1980, and Dr. Mortimer Beck, M.D., was appointed to examine the defendant to determine his state of mind at the time of the offense.

On the day set for trial, October 13, 1980, the People were prepared for trial; however, the defendant was not because he had not yet been examined by Dr. Beck. The court ordered the sheriff of Peoria County to transport the defendant to Dr. Beck’s office for the purpose of examination on October 16,1980. The trial judge put the case on a “day-to-day” call at this time, with no objection by either side. Dr. Beck’s examination was conducted as scheduled.

The next order entered was on November 10, 1980, whereby the court, apparently upon defendant’s oral motion of the same date, ordered the sheriff of Peoria County to transport the defendant to Dr. John E. Sheen’s office. Dr. Sheen was to perform a second psychiatric examination of the defendant on November 12, 1980.

On January 28, 1981, there was an agreement to continue the matter until January 29,1981. At that time the trial court raised the question of the 120-day rule. (Ill. Rev. Stat. 1979, ch. 38, par. 103 — 5(a).) The defendant then orally made a motion to dismiss the indictment based on the State’s failure to provide him a speedy trial. A written motion for dismissal was filed on February 4,1981. The court set February 5, 1981, for a hearing on the motion.

At the hearing on February 5, 1981, the assistant State’s Attorney originally assigned to this case, William Holman, was called by the State to testify. His testimony corroborated what has been stated here. In addition, he stated that the People did not move for a continuance on October 13, 1980, nor was there any discussion of a trial date with the defense counsel, Frank Piel. Mr. Holman said further that he never made a motion to have the defendant examined. He never received any information or report from the defense as to the results of the examination by Dr. Beck.

William Holman assumed other duties, and the defendant’s case was transferred to assistant State’s Attorney Marcia Straub on December 15, 1980. Straub testified that she never made a motion for a continuance. Nor had she moved to have the defendant examined by a psychiatrist. She did not receive a copy of the reports concerning the psychiatric examinations.

Upon further questioning by the State, Straub said she discussed a plea with defense counsel, Frank Piel, on January 9,1981. Piel told her the psychiatric examination was completed, and that he would discuss the plea offer with the defendant.

According to Straub, on January 29, 1981, the defense told her there would be no plea and a trial date should be set. However, as stated above, after the trial judge raised the question of the 120-day rule, the defense orally made its motion for dismissal on that basis. On cross-examination Straub stated that she did not take any steps toward setting a definite trial date, nor did the defense restrict her in that regard. Defense counsel also told her that the examination reports and medical testimony were not going to be used. Although there was a plea offer standing from January 9, 1981, Straub was not told by the defense to refrain from setting a trial date.

The defendant did not present any witnesses or evidence at the hearing. The trial court thereafter granted the motion, discharging the defendant. Specifically, the court determined that all delays elapsing between the date of the defendant’s incarceration and January 28, 1981, were chargeable to the State, save the following, which were chargeable to the defendant:

(1) The 7-day period from August 27, 1980, when the defendant moved for a continuance, until September 3,1980, when the public defender was appointed; and
(2) The 10-day period from October 6, 1980, when the defendant moved for payment of expert witness fees, until October 16,1980, when Dr. Beck’s examination was performed.

It is the People’s contention in this appeal, that the trial court erred in failing to attribute to the defendant additional delays occasioned by him which suspended the 120-day period from running for the length of the delays. (Ill. Rev. Stat. 1979, ch. 38, par. 103 — 5(f); People v. Donalson (1976), 64 Ill. 2d 536, 356 N.E.2d 776.) Initially, the People assert that the People were prepared for trial on October 13,1980, while the defendant was not because he had yet to be examined by Dr. Beck. Therefore, the People argue, in addition to the 17-day period which the trial court properly charged to the defendant, the period from October 16, 1980, until January 9,1981, is chargeable to him because of the defendant’s failure to indicate his readiness for trial during that period. In support of this contention, the People refer us to the November 10, 1980, order for a psychiatric examination to be conducted by Dr. Sheen. This, according to the People, is evidence of the defendant’s lack of readiness for trial for the entire 85-day period from October 16, 1980, to January 9, 1981.

Throughout this time the case remained on a “day-to-day” calendar pursuant to the court’s order of October 13,1980. The People contend that the defendant acquiesced to this indefinite continuance by his silence. Also, to the People’s knowledge, the defendant remained unprepared for trial as he did not inform the State of the results of the examinations or even if they took place. The People claim the delay ran until January 9, 1981, when the defendant told the State that the examinations had been performed and he had the results.

While a defendant has a right to be tried within 120 days from the date he was taken into custody, that period may be suspended temporarily for various reasons, such as delay occasioned by the defendant. (Ill. Rev. Stat. 1979, ch. 38, par. 103 — 5(a), (f).) “In determining [whether the defendant has occasioned the delay], the criterion [used] is whether the defendant’s acts in fact caused or contributed to the delay.” (People v. Nunnery (1973), 54 Ill. 2d 372, 376, 297 N.E.2d 129, 130 (quoting People v. Fosdick (1967), 36 Ill. 2d 524, 528-29, 224 N.E.2d 242, 246).) Where the State requests a continuance due to delay necessitated by the action of the defendant, it has been held that the statutory period is suspended. (People v. Ruple (1980), 82 Ill. App. 3d 781, 403 N.E.2d 129.) Or where there are different reasons for a delay, some which are attributable to the State, some attributable to the defendant, the fact that at least in part the delay is caused by the defendant is sufficient to suspend the rule. People v. Keagbine (1979), 77 Ill. App. 3d 1039, 396 N.E.2d 1341.

The 120-day period begins to run when the defendant is incarcerated on charges. (Dillingham v. United States (1975), 423 U.S. 64, 46 L. Ed. 2d 205, 96 S. Ct. 303; People v. Woodruff (1980), 90 Ill. App. 3d 236, 412 N.E.2d 1171; People v. Nichols (1978), 60 Ill. App. 3d 919, 377 N.E.2d 815.) The period is tallied by excluding the day when custody begins and including the day when trial begins. People v. Solheim (1977), 54 Ill. App. 3d 379, 369 N.E.2d 308.

In order to obtain a discharge for the failure of the State to try the defendant within 120 days, the defendant must show he was committed, gave no bail, he was not tried within 120 days, and he was not accountable for any delay. (People v. Jones (1965), 33 Ill. 2d 357, 211 N.E.2d 261; People v. Mrozek (1977), 52 Ill. App. 3d 500, 367 N.E.2d 783.) The burden of establishing that he was not responsible for a delay and is entitled to discharge rests upon the defendant. (People v. Pearson (1980), 88 Ill. App. 3d 616, 410 N.E.2d 958.) A defendant’s right to a speedy trial is not violated, then, if a delay results from a motion filed by the defendant (People v. Wilson (1974), 19 Ill. App. 3d 466, 311 N.E.2d 759); or where by his affirmative act he has contributed to actual delay or has expressly agreed to a continuance on the record (People v. Cunningham (1979), 77 Ill. App. 3d 949, 952, 396 N.E.2d 876, 878). The period of suspension for the delay is also computed by excluding the first day and including the last day. Ill. Rev. Stat. 1979, ch. 1, par. 1012; People v. Bivens (1981), 97 Ill. App. 3d 386, 422 N.E.2d 1044; Solheim.

While the burden of proof rests on the defendant when moving for discharge under the 120-day rule, it has been held that a delay cannot be attributed to the defendant where the record is silent. (Cunningham.) The accused in custody has no duty to demand trial. (Mrozek.) The State has the duty to bring the defendant to trial within the statutory period, and the period is suspended only “when there has been actual delay of trial clearly attributable to the defendant.” People v. Perkins (1980), 90 Ill. App. 3d 975, 979, 414 N.E.2d 110, 114 (citing People v. Hannah (1975), 31 Ill. App. 3d 1087, 1089, 335 N.E.2d 84, 86).

Whether a delay was occasioned by the defendant so that he is charged with it is a decision for the trial court. The decision of the trial court should be sustained on appeal, unless it is clearly shown that the court’s discretion was abused. (Cunningham; People v. Parker (1978), 59 Ill. App. 3d 302, 375 N.E.2d 465; People v. Arch (1975), 33 Ill. App. 3d 331, 337 N.E.2d 221.) The trial judge is in a better position to attribute delay to one party or another (People v. Snyder (1975), 32 Ill. App. 3d 1003, 337 N.E.2d 108), to interpret the motion, estimate a reasonable time needed to answer, and decide whether objections to the motion are genuine or dilatory. People v. Thomas (1975), 25 Ill. App. 3d 88, 322 N.E.2d 597.

In the instant case, the trial court assessed a period of delay from October 6,1980, to October 16,1980, against the defendant. This decision was based on two facts, one being that the defendant made a motion for payment of expert witness fees on October 6, 1980, and the other being that the psychiatric examination the fees were to pay for was not conducted until October 16, 1980. During this time the case was placed on a day-to-day call which the People argue was an indefinite continuance acquiesced in by the defendant and running to January 9, 1981.

In support of the People’s argument on appeal, the People have relied on People v. Siglar (1971), 49 Ill. 2d 491, 274 N.E.2d 65. We do not find Siglar persuasive authority in the instant case. In Siglar, the defendant moved for an examination and mental hearing on competency to stand trial, which does suspend the 120-day period. (Ill. Rev. Stat. 1979, ch. 38, par. 103 — 5(a).) Contrawise, the defendant herein made a motion for payment of expert witness fees and he was to be examined for the purpose of raising the defense of insanity. A defendant who is competent to stand trial but is in need of mental treatment has the same rights to a speedy trial as any other competent defendant. (People v. Hannah (1975), 31 Ill. App. 3d 1087, 335 N.E.2d 84.) Here, the trial judge determined that the statute should be suspended no longer than the time needed to have the defendant examined by Dr. Beck.

Also, the Siglar case dealt with the express agreement by the defendant to continue the case indefinitely. By contrast, the record in the instant case indicates no such agreement. The mere fact that the defendant made a motion in the first place which interfered with the trial date of October 13,1980, does not mean an indefinite continuance was in effect. (People v. McKinney (1978), 59 Ill. App. 3d 536, 375 N.E.2d 854.) “[M]ere silence on [the defendant’s] part [does] not amount to an agreement or to a waiver of his right to a speedy trial.” (People v. Cichanski (1980), 81 Ill. App. 3d 619, 622, 401 N.E.2d 1315, 1317.) In the present case, the record indicates that the defendant was merely silent. He did not, as such, acquiesce in an indefinite day-to-day continuance. Absent an express agreement on the part of the defendant to an indefinite continuance, his silence, in the case at bar, did not suspend the 120-day period. (People v. Arch (1975), 33 Ill. App. 3d 331, 337 N.E.2d 221.) Therefore, the trial judge did not abuse his discretion in attributing the period of October 17, 1980, to November 10, 1980, to the State.

However, the trial court, perhaps inadvertently, improperly charged to the State the period of November 10, 1980, to November 12, 1980, when the defendant, on his own motion, was seen by another psychiatrist. This two-day period was clearly a delay caused by or contributed to by the defendant.

Finally, the People argue that the defendant occasioned a delay by his motion to dismiss on January 29, 1981, which continued until the hearing on that motion, February 5, 1981. The defendant’s motion to dismiss is not a delay attributable to the defendant, but is merely the means required to inform the court that his right to a speedy trial has been denied. (Ill. Rev. Stat. 1979, ch. 38, par. 114 — 1(a)(1).) The defendant must make this motion to avoid waiver of his right. Therefore, the State’s argument is without merit. People v. Uryasz (1975), 32 Ill. App. 3d 825, 336 N.E.2d 813.

Summarizing, we conclude that the entire period elapsing between the date of the defendant’s incarceration and his trial is chargeable as follows:

Thus, the total period chargeable to the State is, as the trial court correctly determined, in excess of the permissible limit.

Based on the foregoing reasons, the judgment of the circuit court of Peoria County is affirmed.

Affirmed.

STOUDER and HEIPLE, JJ., concur.