author: JUSTICE McGILLICUDDY

text:
    THE PEOPLE ex rel. ILLINOIS STATE SCHOLARSHIP COMMISSION, Plaintiff-Appellee, v. YVONNE CARUTHERS, Defendant-Appellant.
    First District (3rd Division)
    No. 82 — 594
    Opinion filed August 31, 1983.

      Orville E. Hambright, Jr., of Chicago, for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield (Rosalyn B. Kaplan, Assistant Attorney General, of counsel), for appellee.
   JUSTICE McGILLICUDDY

delivered the opinion of the court:

The Illinois State Scholarship Commission (ISSC) brought this action against Yvonne Caruthers, defendant, for repayment of a student loan. The defendant filed a motion to dismiss the complaint, alleging that the ISSC debt had been discharged in bankruptcy. The motion was denied. The trial court certified the following question, which is the sole issue for review:

“Whether the student loan the plaintiff’s [sic] are seeking to recover in their complaint is a debt barred by reason of the prior judgment or discharge in bankruptcy on February 21, 1979, by Judge McCormick?”

The defendant filed a petition for voluntary bankruptcy on January 8, 1979, listing the Hyde Park Bank & Trust Company as a creditor. The loan was made through the Illinois Guaranteed Loan Program. The ISSC acquired the instrument by assignment from the Hyde Park Bank & Trust Company and now owns it. On February 21, 1979, a discharge in bankruptcy was issued, releasing the defendant from “all dischargeable debts.” The ISSC brought this action on August 11, 1981, to recover the principal balance of the loan, $4,515, plus interest, attorney fees and costs. The trial court denied the defendant’s motion to dismiss. Pursuant to Supreme Court Rule 308 (87 Ill. 2d R. 308), we granted leave to appeal from the interlocutory order.

On September 30, 1977, section 439A of the Higher Education Act of 1965, as amended, became effective. It provided in pertinent part:

“(a) A debt which is a loan insured or guaranteed under the authority of this part may be released by a discharge in bankruptcy under the Bankruptcy Act only if such discharge is granted after the five-year period *** beginning on the date of commencement of the repayment period of such loan, except that prior to the expiration of that five-year period, such loan may be released only if the court in which the proceeding is pending determines that payment from future income or other wealth will impose an undue hardship on the debtor or his dependents.” (20 U.S.C. sec. 1087 — 3 (1976), current version at 11 U.S.C. sec. 523(a)(8) (Supp. IV 1980).)

This provision was repealed effective November 6, 1978, by section 317 of the Bankruptcy Reform Act (BRA), Pub. L. No. 95 — 598, sec. 317, 92 Stat. 2678, and replaced by an analogous section, 11 U.S.C. sec. 523(a)(8) (Supp. IV 1980). Section 523(a)(8) provides as follows:

“(a) A discharge under section 727, 1141, or 1328(b) of this title does not discharge an individual debtor from any debt—
* * *
(8) for an educational loan made, insured, or guaranteed by a governmental unit, or made under any program funded in whole or in part by a governmental unit or a nonprofit institution of higher education, unless—
(A) such loan first became due before five years *** before the date of the filing of the petition; or
(B) excepting such debt from discharge under this paragraph will impose an undue hardship on the debtor and the debtor’s dependents; ***.” (11 U.S.C. sec. 523(a)(8) (Supp. IV 1980).)

This section, by virtue of section 402(d) of the BRA (Pub. L. No. 95— 598, sec. 402(d), 92 Stat. 2682), became effective on October 1, 1979. Consequently, an 11-month gap in coverage of the prohibition on discharge of student loans existed between the repeal of 20 U.S.C. sec. 1087 — 3 (1976) and the implementation of 11 U.S.C. sec. 523(a)(8) (Supp. IV1980).

The inadvertent creation of the hiatus was subsequently acknowledged by the Senate Committee on the Judiciary in its report issued in connection with the Act of August 14, 1979, Pub. L. No. 96 — 56, 93 Stat. 387. (See In re Adamo (2d Cir. 1980), 619 F.2d 216, 220-21.) Public Law 96 — 56 cured the hiatus and made student loans nondischargeable until October 1, 1979, when 11 U.S.C. sec. 523(a)(8) (Supp. IV 1980) became effective.

It was during the hiatus that the instant defendant filed her petition and received the discharge in bankruptcy. The first installment payment on the loan became due on October 4, 1977, 15 months before the petition was filed. There is no evidence that excepting the debt from discharge in bankruptcy would cause the defendant undue hardship.

The Second Circuit Court of Appeals examined the relevant provisions of the BRA in In re Adamo (2d Cir. 1980), 619 F.2d 216, where voluntary petitions in bankruptcy were filed prior to the repeal of 20 U.S.C. sec. 1087 — 3 (1976) and disposed of during the hiatus between the repeal of section 1087 — 3 and the effective date of its successor provision, 11 U.S.C. sec. 523(a)(8) (Supp. IV 1980). The court concluded that the interruption in the law of student loan nondischargeability “was purely a manifestation of congressional inadvertence and that to follow blindly the plain meaning of the statute without regard to the obvious intention of Congress would create an absurd result in accord with neither established principles of statutory construction nor common sense.” (619 F.2d 216, 219.) The court disregarded the premature repeal of 20 U.S.C. sec. 1087 — 3 (1976) and ruled that the student loans were not dischargeable. 619 F.2d 216, 222.

The Seventh Circuit followed Adamo in Wisconsin Higher Educational Aids Board v. Lipke (7th Cir. 1980), 630 F.2d 1225, where the defendant’s petition for bankruptcy was filed and his bankrupt adjudication was granted on May 7, 1979, during the gap in coverage. He contended that the adjudication in bankruptcy had discharged his student loan debts. Recognizing the creation of the hiatus as “clearly a draftsman’s mistake,” the court found section 317 of the BRA, which repealed 20 U.S.C. sec. 1087 — 3 (1976), ineffective with respect to the discharge of student loans in bankruptcy proceedings commenced prior to October 1, 1979, the effective date of 11 U.S.C. sec. 523(a)(8) (Supp. IV 1980), 630 F.2d 1225,1230-31.

The Fifth and Eleventh Circuits, relying upon Adamo, have held that, regardless of the gap in the relevant provisions, student loans are not dischargeable in bankruptcy. See Carnegia v. Georgia Higher Education Assistance Corp. (11th Cir. 1982), 691 F.2d 482; In re Williamson (5th Cir. 1982), 665 F.2d 683.

Our research indicates that no Illinois case has addressed this issue. However, in a parallel situation, the supreme court has interpreted a portion of the Election Code “to still include the paragraph specifically deleted by the legislature” where to do otherwise would yield a result contrary to legislative intent. (Carey v. Elrod (1971), 49 Ill. 2d 464, 472, 275 N.E.2d 367.) In Carey, the court noted:

“The legislative intent in question is further evidenced by the fact that the legislature, when made aware of the language of the amendment it had made ***, restored the pertinent deleted language ***. On the question of the prior intent of the legislature, it is appropriate for us to consider this recent legislative action. [Citation.]” 49 Ill. 2d 464, 472.

Our examination of the legislative intent throughout the history of the relevant provisions of the BRA indicates that the 11-month hiatus was indeed a manifestation of congressional inadvertence. To enforce the result of this mistake would be to thwart evident statutory purpose as well as common sense. (See In re Adamo.) We hold that the defendant’s student loan obligation was not a “dischargeable debt” released in the bankruptcy order of February 21, 1979; therefore, the ISSC’s action is not barred by reason of the bankruptcy order.

For the foregoing reasons, the interlocutory order of the circuit court of Cook County is affirmed and the cause remanded for proceedings consistent with this opinion.

Affirmed and remanded.

RIZZI and O’CONNOR, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE ROMITI

license: Public Domain

text:
    MARQUETTE NATIONAL BANK, Plaintiff and Counterdefendant-Appellee, v. JACK J. LOFTUS et al., Defendants and Counterplantiffs-Appellants—(Jack J. Loftus et al., Indiv. and on behalf of Jack Loftus Ford, Inc., Third-Party Plaintiffs-Appellants, v. Ford Motor Company et al., Third-Party Defendants-Appellees).
    First District (4th Division)
    No. 82 — 1892
    Opinion filed July 28, 1983.
    Rehearing denied September 16, 1983.

      Francis B. Stine, of Chicago, for appellants.
    Michael R. Feagley, Michele Odorizzi, Priscilla P. Weaver, and Dennis R. Freedman, all of Mayer, Brown & Platt, of Chicago, for appellees Ford Motor Company et al.

   PRESIDING JUSTICE ROMITI

delivered the opinion of the court:

Jack Loftus, major owner of Loftus Motors, sued Ford Motor Company for violations of the Motor Vehicle Franchise Act. (Ill. Rev. Stat. 1979, ch. 121½, par. 751 et seq.) The trial court dismissed the claim. We affirm, holding that the Act did not apply to a franchise agreement which pre-existed the statute although the acts in question occurred after its enactment.

In 1970 Ford Motor Company entered into a series of contracts including a franchise contract, a dealer development agreement and a management contract under which Loftus became the dealership’s general manager. In 1979 Loftus owned an 81% interest in the dealership and Ford 19%. In November 1979 Ford, through its agents on the board of Loftus Motors, terminated Loftus as officer, director and employee of the dealership, and then proceeded to liquidate the assets, allegedly failing at that time to require Ford to repurchase inventory it was required under the franchise agreement to repurchase. Loftus has sued Ford, inter alia, under the Motor Vehicle Franchise Act, which became effective in June 1979. The court dismissed this claim of Loftus with prejudice holding the statute could not be applied retroactively because such application would be an unconstitutional impairment of contract. Loftus appeals under Supreme Court Rule 304(a) (87 Ill. 2d R. 304(a)).

It is difficult indeed to see how applying the Illinois statute could be an impairment of contract in light of the fact that, according to the express terms of the contract, it was a Michigan contract, controlled by Michigan law; the Michigan statute contains provisions similar to those sued upon in this case (Mich. Comp. Laws sec. 445.522; Mich. Stat. Ann. sec. 18.856[2]); the Michigan statute is, under Michigan law, applicable to conduct occurring in 1979 even though the agreement pre-existed the statute (Anderson’s Vehicle Sales, Inc. v. OMC-Lincoln (1979), 93 Mich. App. 404, 287 N.W.2d 247), and, accordingly, the Michigan statute must be read into the franchise agreement. (Schiro v. W. E. Gould & Co. (1960), 18 Ill. 2d 538, 165 N.E.2d 286; Flood v. Country Mutual Insurance Co. (1967), 89 Ill. App. 2d 358, 232 N.E.2d 32.) But that issue need not be decided because under Illinois law the Illinois statute cannot be applied retroactively.

Under the most recent Illinois Supreme Court pronouncements a statute can only be applied retroactively if there is an express statutory provision stating an act is to have retroactive effect. (Village of Wilsonville v. SCA Services, Inc. (1981), 86 Ill. 2d 1, 426 N.E.2d 824; In re Estate of Krotzsch (1975), 60 Ill. 2d 342, 326 N.E.2d 758.) Since there is no such language in the statute, it would be improper for this court to apply the statute retroactively even if, as Loftus contends, it were clear from the legislative history that the legislature expected the statute to be applied to existing franchises.

We are aware that Michigan, in Anderson, held that applying the statute to conduct occurring after the effective date of the statute was not a retroactive application even though the franchise agreement pre-existed the statute. But Illinois law is to the contrary:

“McAleer does not dispute the fact that Illinois courts engage in a strong presumption that laws will be applied prospectively only, nor does it contend that the General Assembly has expressed an intent that the Franchise Act should be retroactively applied. Rather, McAleer contends that the trial court has not applied the Act retroactively because it has applied it only to conduct occurring after the effective date of the Act, i.e., GMC’s attempt in 1980 to terminate the agreement without showing good cause for doing so.
The court in Anderson’s Vehicle Sales, Inc. v. OMC-Lincoln (1979), 93 Mich. App. 404, 287 N.W.2d 247, followed the reasoning that McAleer urges upon us. In that case, the parties entered their agreement prior to July 11, 1978, the effective date of a franchise act which required 60 days’ written notice for the termination of such an agreement. OMC-Lincoln gave notice on July 5, 1978, with termination to occur on August 5, 1978. Under those circumstances, said the court, there was no retroactivity problem. OMC-Lincoln’s termination without giving 60 days’ notice occurred after the effective date of the Act. Other supporting authority cited by McAleer came to a similar result.
We do not agree, however, with the reasoning used in the Anderson’s Vehicle Sales, Inc. case. The Illinois Supreme Court has defined a retroactive law as:
<«<*** one .^at takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability in respect of transactions or considerations already past.’ ” ’ (United States Steel Credit Union v. Knight (1965), 32 Ill. 2d 138, 142, 204 N.E.2d 4, 6.)
Thus, retroactivity is defined in terms of the effect a law would have on vested contractual rights, not in terms of the time when a party happens to assert those rights.” McAleer Buick-Pontiac Co. v. General Motors Corp. (1981), 95 Ill. App. 3d 111, 112-13, 419 N.E.2d 608, 609-10.

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

JOHNSON and LINN, JJ., concur.


author: JUSTICE WILSON

text:
    TRI-AMERICA OIL COMPANY, Plaintiff-Appellee, v. THE DEPARTMENT OF REVENUE et al., Defendants-Appellants.
    First District (5th Division)
    No. 81 — 950
    Opinion filed July 30, 1982.
    Rehearing denied September 13, 1983.

      Tyrone C. Fahner, Attorney General, of Springfield (Kathleen M. Lien, Assistant Attorney General, of counsel), for appellants.
    Berkson, Gorov & Levin, Ltd., of Chicago (Arthur M. Gorov and Norman N. Berkson, of counsel), for appellee.
   JUSTICE WILSON

delivered the opinion of the court:

Plaintiff filed a complaint for administrative review in the circuit court seeking to set aside an assessment of taxes judged by defendants as due under the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1981, ch. 120, par. 440 et seq.) and the Municipal Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1981, ch. 24, par. 8 — 11—1 et seq.) (hereinafter both referred to as the Act). The circuit court reversed the administrative decision, and this appeal follows.

Plaintiff is a retail and wholesale seller of gasoline. Defendants audited plaintiff for the period of January 1975 to December 1977 and found that during this period, plaintiff sold gas to a station which was leased from plaintiff and operated by one Alfonzo Chavez as an independent dealer. The sales to Chavez amounted to $151,023.45.

Plaintiff claimed tax deductions for the sales to Chavez on the basis that the sales were made for the purpose of resale, however, no resale certificate for Chavez was produced. Evidence established that Chavez did not have a resale certificate, but it was plaintiff’s policy and practice to obtain one from all independent dealers and they had obtained certificates from all dealers except Chavez. Because plaintiff did not have Chavez’ resale certificate, deductions for the sales to Chavez were disallowed and plaintiff was assessed $10,862.51 for tax deficiencies of State and municipal retailers’ occupation tax, plus penalties and interest. On review, the circuit court reversed based on the grounds that Dearborn Wholesale Grocers, Inc. v. Whitler (1980), 82 Ill. 2d 471, 413 N.E.2d 370, was controlling.

Opinion

Defendants argue that plaintiff’s occupation places it within the class of vendors covered by the Act. Thus, Dearborn is not applicable to this situation and it was error for the circuit court to reverse the administrative determination.

Section 2c of the Act requires the purchaser who is a reseller of tangible personal property “in such a way that such resales are not taxable under this Act” to apply for a resale certificate. The Act also provides in pertinent part that:

“ ‘Sale at retail’ ” shall be construed to include any transfer of the ownership of or title to tangible personal property to a purchaser, for use or consumption by any other person to whom such purchaser may transfer the tangible personal property without a valuable consideration, and to include any transfer, whether made for or without a valuable consideration, for resale in any form as tangible personal property unless made in compliance with Section 2c of this Act.” (Ill. Rev. Stat. 1981, ch. 120, par. 440.)
“Except as provided hereinabove in this Section, no sale shall be made tax-free on the ground of being a sale for resale unless the purchaser has an active registration number or resale number from the Department and furnishes that number to the seller in connection with certifying to the seller that any sale to such purchaser is nontaxable because of being a sale for resale.” Ill. Rev. Stat. 1981, ch. 120, par. 441c.

The threshold question is who must comply with the resale certificate requirements of the Act. This same issue was considered recently in Illinois Cereal Mills, Inc. v. Department of Revenue (1982), 106 Ill. App. 3d 53, 435 N.E.2d 774. In that case, the evidence conclusively showed that the sales involved in the dispute were for resale, but plaintiff did not comply with the documentation and verification requirements of section 2c. The evidence also showed that plaintiff’s products were sold almost entirely for resale, although a small amount of sales were made to the ultimate consumer. One of the issues plaintiff raised in that case was whether the Act could be construed to bar those making sales for resale from proving their sales were for resale by means other than resale certificates merely because they make a few sales at retail. We held, as we must hold here, that section 2c is applicable to those who sell mostly for resale but make some sales at retail. Thus, the making of some sales at retail brings the seller within the coverage of the Act. If section 2c were to apply only to retailers who do not also sell for resale, then this section would be meaningless, for it applies only to sales for resale. The whole purpose of section 2c is to verify that a sale is exempt. (Dear- born.) Unlike the vendor in Dearborn whose sales were solely wholesale, the vendor in the pending matter does have some retail sales. We stated in Illinois Cereal Mills, Inc., that there is a greater chance for a sale to be erroneously claimed as resale when the vendor sells both at retail and for resale than when the seller is shown to be selling exclusively for resale. (106 Ill. App. 3d 53, 57.) Thus, it is not unreasonable in situations of this type to require that exemptions be established solely by the resale certificates.

Accordingly, we must find that the requirement of obtaining a resale certificate is applicable to sellers like Tri-America, who are both wholesalers and retailers.

Plaintiff raises the additional argument that defendants did not raise their issue in the trial court, thus failing to preserve its position on appeal. Defendants were ordered to file their response and memorandum to plaintiff’s motion for a finding on its behalf on review in the circuit court.

A court may not, upon administrative review, hear further evidence or conduct a hearing de novo. (Lamar v. Illinois Racing Board (1977), 55 Ill. App. 3d 640, 370 N.E.2d 1241.) As such, the trial court acting as a court of review, was apprised of defendants’ position by the administrative record, which preserved defendants’ position on appeal.

For the foregoing reasons, we reverse the order of the circuit court reversing the administrative agency ruling and remand this matter, directing that the court enter an order affirming the administrative determination, and for such other proceedings consistent with this opinion.

Reversed and remanded with directions.

SULLIVAN, P.J., and LORENZ, J., concur.


author: JUSTICE LORENZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff and Respondent-Appellee, v. JESSE HILL et al., Defendants—(Stanley L. Hill et al., Petitioners-Appellants).
    First District (5th Division)
    No. 82 — 268
    Opinion filed August 26, 1983.
    Rehearing denied October 5, 1983.
    Roosevelt Thomas, of Chicago, for appellants.
    Donald D. Bernardi, State’s Attorney, of Pontiac (Robert J. Biderman and Garry W. Bryan, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

The petitioners are the court-appointed private counsel who successfully represented indigent defendants in the large-scale murder prosecution commonly known as the Pontiac Prison Riot Case, and they appeal, contending the trial court erred by failing to provide reasonable compensation for their services.

We affirm because the petitioners have failed to present a record which would permit us to adequately assess whether the trial court abused its discretion. Pertinent to our decision are the following facts: On March 5, 1979, a grand jury in Livingston County indicted 17 inmates of the prison at Pontiac, Illinois, on charges of murder, attempted murder, aggravated battery, mob action, and conspiracy. The petitioners were appointed to represent the defendants, and venue was changed to Cook County.

The trial court entered an order on June 28, 1979, which provided that the petitioners would be compensated at the following rates:

“$20 per hour for each hour expended on the case by an attorney while Court is not in session, plus $35 per hour expended on the case by an attorney while court is in session with a limit of $175 per day or $875 per week per attorney during the pretrial phase of the proceedings, and a limit of $250 per day or $1,250 per week per attorney during the trial phase of the proceedings. In the event the actual court time computed at the rate of $35 per hour shall for any attorney on any day exceed the applicable limit imposed, actual court time at the rate of $35 per hour shall be paid. Each Court appointed counsel shall in addition be reimbursed an amount not to exceed $500 for reasonable expenses incurred during the course of the proceedings for investigation, para-professional services and other expenses related to the case. Reimbursement for expenses in excess of the limits will not be made unless the Court has previously approved the expenditure of such payments.”

When trial commenced on March 4, 1981, the court increased the compensation to $45 an hour for time spent trying the case, and $30 an hour for work outside the courtroom. The weekly maximum was raised to $1,500, but the court specified that in-court time which exceeded this limit would be compensated at the rate of $45 an hour.

All the defendants were acquitted of all charges after trial by jury, and the petitioners have appealed, contending the trial court’s fee schedule failed to provide them with reasonable compensation for their services, and that the trial court abused its discretion in ruling on post-trial fee petitions.

. The record on appeal contains more than 300 pages of written orders in which the trial court ruled on a large number of fee petitions. However, the record does not contain any of the petitions which these orders refer to.

Opinion

When an attorney seeks compensation for representing an indigent defendant in a criminal case, the attorney has the initial burden of “providing] the trial judge with an application sufficiently detailed to allow an exercise of informed judicial discretion.” (United States v. Thompson (D.D.C. 1973), 361 F. Supp. 879, 884, aff’d in part, vac. in part sub nom. United States v. Boggins (D.C. App. 1974), 489 F.2d 1273.) Such petitions must show how the attorney’s time was spent, identifying the nature and purpose of the services for which compensation is sought. United States v. Parker (D.D.C. 1969), 298 F. Supp. 482; United States v. Naples (D.D.C. 1967), 266 F. Supp. 608, 609.

The Illinois Supreme Court has expressly acknowledged that when an attorney seeks an award of fees, failure to keep records of the amount of time expended and the nature of the services rendered “greatly increases the difficulty in determining a proper fee.” (Flynn v. Kucharski (1974), 59 Ill. 2d 61, 67.) Therefore, as the supreme court recently pointed out, the purpose of requiring counsel to provide the trial court with such information is to “establish a basis upon which to determine compensation, as well as provide a record in the event of review.” (Emphasis added.) (People v. Johnson (1981), 87 Ill. 2d 98, 106.) Moreover, it is presumed that the trial court has not abused its discretion (Anthony v. Gilbrath (1947), 396 Ill. 125, 127), and an appellant has the burden of establishing that the trial court’s decision was erroneous (Flynn v. Vancil (1968), 41 Ill. 2d 236, 241).

The record in the present case does not contain the petitions referred to in the trial court’s orders, and there is nothing else in the record to establish either the amount of time allegedly expended or the nature of the services for which compensation was sought. The petitioners have therefore failed to meet their burden of presenting a record which would provide an adequate basis for assessing whether the trial court abused its discretion in ruling on their post-trial petitions.

The remaining question is whether the fee schedules established by the trial court failed to provide reasonable compensation.

The supreme court has held that “[t]he formula for reasonable compensation [of court-appointed private counsel in criminal cases] should be the hourly fee normally charged for comparable trial court services, less an amount adequate to satisfy the pro bono factor. In determining what constitutes a reasonable fee, the trial court must consider a number of factors, including, but not limited to, time spent and services rendered, the attorney’s skill and experience, complexity of the case, overhead costs, and expenses of trial.” People v. Johnson (1981), 87 Ill. 2d 98, 105-06.

According to the petitioners, the fee schedules established by the trial court did not even compensate them for office overhead, although the supreme court has held that “[a] fee award which is insufficient to cover reasonable office overhead and expenses of trial is clearly unreasonable.” (People v. Johnson (1981), 87 Ill. 2d 98, 105.) However, the record on appeal in the present case does not establish what the petitioners paid as office expenses.

Without citing to the record, petitioners’ brief contains data concerning the office overhead paid by three of the petitioners. Nevertheless, careful review shows that this information is not included in the record which has been presented for review, and it cannot be considered. Similarly, this brief contains information about (a) the legal experience of several of the petitioners; (b) the number of pages of discovery material exchanged before trial; (c) the number of potential witnesses listed by the prosecution; and (d) the number of pretrial motions. Moreover, the failure to provide information about the nature and purpose of the various tasks performed by the individual petitioners “greatly increases the difficulty in determining a proper fee.” Flynn v. Kucharski (1974), 59 Ill. 2d 61, 67.

Briefly stated, the record on appeal simply fails to provide an adequate basis for determining whether the trial court abused its discretion when it established the fee schedules in question.

We recognize this was a death penalty case, and it is not surprising that counsel became so preoccupied with zealously defending their clients’ lives and liberty that they failed to “protect the record” on the issue of attorney fees. The petitioners are to be commended for having volunteered to assume the awesome responsibility of defending a capital case, but they have questioned the trial court’s exercise of its discretion, and they are obligated to present a record which would enable us to determine whether this discretion has been abused. The petitioners have failed to meet this burden, and the judgment of the circuit court must be affirmed.

Affirmed.

SULLIVAN and MEJDA, JJ., concur.

       Stanley L. Hill, David C. Thomas, Leo E. Holt, Marianne Jackson, Isaiah S. Gant, Randolph N. Stone, Lawrence E. Kennon, Akim Gursel, Jeffrey H. Haas, and Roosevelt Thomas.


author: JUSTICE WHITE

text:
    TONETTA JUDE, a/k/a Tonetta Bailey, Mother and Next Friend to Megan Bailey, a Minor, Plaintiff-Appellant, v. JOHN T. MORRISSEY, a/k/a Jack T. Morrissey, Defendant-Appellee.
    First District (3rd Division)
    No. 82 — 2188
    Opinion filed August 31, 1983.
    Aviva Futorian and Cathleen C. Cohen, both of Chicago, for appellant.
    Joseph V. Roddy, of Chicago, for appellee.
   JUSTICE WHITE

delivered the opinion of the court:

Plaintiff, Tonetta Jude, appeals from the order of the circuit court of Cook County dismissing her complaint filed under the Illinois Paternity Act for failure to file within the applicable two-year limitations period. Ill. Rev. Stat. 1981, ch. 40, par. 1351 et seq.

On April 14, 1982, Jude filed an action pursuant to the Paternity Act (Ill. Rev. Stat. 1981, ch. 40, par. 1351 et seq.) seeking to establish that defendant, John Morrissey, was the father of her daughter, Megan Bailey, who was born out of wedlock on September 22, 1978. On July 8, 1982, Morrissey moved to dismiss the cause on the ground that it was barred because it was not filed within two years of the birth of the child as required by statute. Ill. Rev. Stat. 1981, ch. 40, par. 1351.

Jude maintained in the trial court that certain conduct of Morrissey, in concealing his identity from her, constituted “concealment” within the meaning of the Paternity Act so as to toll the two-year limitations period. Jude further maintained that if the statute was not tolled, the statutory two-year limitations period was unconstitutional.

The trial court granted Morrissey’s motion to dismiss for failure to file the action within two years of the child’s birth. The trial court held that Morrissey’s conduct did not constitute concealment within the meaning of the Paternity Act so as to toll the limitations period. The trial court also held that the two-year limitations period was constitutional.

Jude contends that the two-year limitations period governing paternity actions violates the equal protection clause of the fourteenth amendment to the Federal Constitution. Specifically, Jude argues that the limitations period imposes a restriction on the support rights of some illegitimate children that is not imposed on the same rights of legitimate children.

During the pendency of this appeal, the United State Supreme Court held that the Tennessee paternity statute, which similarly imposed a two-year limitations period on paternity and child support actions brought on behalf of certain illegitimate children, denied those children the equal protection of the laws. (Pickett v. Brown (1983), 462 U.S. ___, 76 L. Ed. 2d 372, 103 S. Ct. 2199.) The rationale of Pickett, which is equally appliable here, was as follows. First, a two-year limitations period did not provide illegitimate children with an adequate opportunity to obtain support. The court reasoned that during the first two years after the child’s birth:

“[t]he mother may experience financial difficulties caused not only by the child’s birth, but also by a loss of income attributable to the need to care for the child. Moreover, ‘continuing affection for the child’s father, a desire to avoid disapproval of family and community, or the emotional strain and confusion that often attend the birth of an illegitimate child,’ 456 U.S. at 100, may inhibit a mother from filing a paternity suit on behalf of the child within two years after the child’s birth.” 462 U.S. _,_, 76 L. Ed. 2d 372, 382, 103 S. Ct. 2199, 2206.

The court also concluded that a two-year limitations period governing paternity and support suits brought on behalf of certain illegitimate children is not substantially related to the State’s interest in avoiding the litigation of stale or fraudulent claims. The Pickett court gave the following reasons for its holding: (1) “ ‘[w]e can conceive of no evidence essential to paternity suits that will be lost in only [two years]’ ” (462 U.S. _,_, 76 L. Ed. 2d 372, 383, 103 S. Ct. 2199, 2207; Mills v. Habluetzel (1982), 456 U.S. 91, 71 L. Ed. 2d 770, 102 S. Ct. 1549); (2) Tennessee tolls most actions during a child’s minority; and (3) scientific advances in blood testing have alleviated the problems of proof surrounding paternity actions.

Applying the above principles to the case at bar we conclude that the two-year limitations period of the Illinois Paternity Act denies certain illegitimate children the equal protection of the laws. The only difference between Pickett and the case at bar is that under the Tennessee statute paternity and support suits may be brought on behalf of children who are or are likely to become public charges by the State or by any person at any time prior to the child’s 18th birthday. Under the Illinois Paternity Act, the Department of Public Aid must bring an action on behalf of a minor receiving public assistance within the applicable two-year limitations period. (Ill. Rev. Stat. 1981, ch. 40, par. 1351.) However, due to the other similarities between Pickett and the case at bar, we conclude that this difference is not sufficient to compel a different result.

Therefore, we conclude that the Illinois Paternity Act violates the equal protection clause of the fourteenth amendment. Accordingly, the order of the circuit court of Cook County is reversed and we remand this cause for further proceedings consistent with this opinion.

Reversed and remanded.

McNAMARA, P.J., and RIZZI, J., concur.


author: PRESIDING JUSTICE McNAMARA

text:
    ALYECE B. GAMBLE, Beneficiary of the Estate of LOUIS M. GAMBLE, Deceased, and of Land Trust No. 62338, Chicago Title and Trust Company, Trustee, Petitioner-Appellant, v. THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee.
    First District (3rd Division)
    No. 82 — 3013
    Opinion filed August 31, 1983.

      Barry A. Pitler, Philip L. Mandell, and Sigi M. Offenbach, all of Pitler and Mandell, of Chicago (Barry L. Powell, of counsel), for appellant.
    Neil E Hartigan, Attorney General, of Springfield (Thomas P. Marnell, Assistant Attorney General, of counsel), for the People.
   PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

Petitioner, Alyece B. Gamble, as beneficiary of the estate of Louis M. Gamble and of a land trust, brought this action objecting to the Attorney General’s proposed valuation of decedent’s estate at $292,486.94 and the inheritance tax assessment at $11,048.69. The circuit court of Cook County, County Department, County Division, denied petitioner’s objection and entered the tax order proposed by the State. Petitioner’s appeal of that order to the circuit court of Cook County, pursuant to section 11 of the Inheritance and Transfer Tax Law (Ill. Rev. Stat. 1981, ch. 120, par. 385), was denied. Her motion to reconsider was also denied, and this appeal follows.

We are asked to determine whether unpaid real estate taxes in excess of the fair market value of the property may be deducted on an Illinois inheritance tax return. The facts are undisputed.

Louis M. Gamble died on December 3, 1979, owning 100% beneficial interest in a land trust containing two parcels of real estate. Pursuant to the terms of this trust, decedent’s beneficial interest passed to petitioner, his wife. On the date of decedent’s death, the property had a fair market value of $35,000 and was encumbered by recorded liens for unpaid real estate taxes in the amount of $104,444.

In her Illinois inheritance tax return, petitioner deducted the full amount of these unpaid real estate taxes from the gross value of all real estate included in decedent’s estate. Upon audit of the return, the State allowed the deductions for these taxes only to the extent of the appraised fair market value of the property on which these taxes were assessed. It disregarded the excess unpaid tax amount in calculating the total fair market value of decedent’s real estate assets. As a result, the net taxable estate for Illinois inheritance tax purposes was increased by $65,444.

Petitioner first contends on appeal that she is entitled to deduct the full amount of these unpaid real estate taxes from the gross fair market value of all real estate included in decedent’s estate. The amount of unpaid real estate taxes which is a lien against the property on the date of decedent’s death are properly deductible from the fair market value of real estate subject to Illinois inheritance tax. (People v. Ballans (1920), 294 Ill. 551, 128 N.E. 542.) We agree with the State, however, that the value of an asset can be reduced only to zero value, an asset having no value at all, and not to a negative value. Furthermore, because unpaid real estate taxes are a lien only against property on which such taxes have been assessed, the amount of the lien greater than the value of the property may not be used to reduce the value of other estate assets. Thus, when petitioner sought the $104,444 deduction for real estate liens on property valued at $35,000, the State properly reduced the value of the property to zero and disregarded the excess amount of unpaid taxes in its calculation of the net value of all real estate assets subject to the inheritance tax.

Petitioner alternatively contends that she is entitled to deduct the lien amount in excess of the value of the property as a just debt of the decedent in the general deduction section of the return. We do not agree with the State that because real estate tax liens are specifically excluded as a general deduction, the excess lien amount is not deductible. We believe that the legislature intended to exclude in this general deduction section only those liens which have been deducted already in determining the value of the real estate subject to inheritance tax. Thus, the portion of the real estate tax lien disregarded in that determination constitutes a debt of decedent under this section.

We do not agree with petitioner, however, that she is entitled to this deduction. The major premise of petitioner’s argument is that she, as successor beneficiary of the trust or as heir of the estate, is personally liable for the full amount of liened taxes, and that therefore the tax amount in excess of the fair market value of this property may be deducted as a just debt. Petitioner correctly asserts that decedent, as beneficiary of the land trust, was the owner of the real estate for real estate tax purposes. Decedent would have been personally liable for the unpaid taxes in an action to collect those taxes if the real estate itself did not satisfy the liens. (People v. Chicago Title & Trust Co. (1979), 75 Ill. 2d 479, 389 N.E.2d 540.) Contrary to petitioner’s assertion, however, People v. Chicago Title & Trust Co. did not hold that a successor beneficiary is personally liable for taxes which accrued during the predecessor beneficiary’s ownership. Nor do we see any justification for so extending its holding. The Revenue Act of 1939 provides: “The owner of real property on January 1 *** in any year shall be liable for the taxes of that year.” (Ill. Rev. Stat. 1981, ch. 120, par. 508(a).) We agree with the State that petitioner is personally liable as the owner of real estate only for taxes accruing each January 1 after decedent’s death, and not before.

Additionally, Cook County did not file a claim against decedent’s estate for the full amount of the unpaid taxes during the probate claim period. Because tax liens lie in rem, the county may satisfy its liens to the extent of the value of the property to which they are attached, but it cannot proceed against decedent’s estate for the excess amount of unpaid taxes. Hence, petitioner, as the heir of decedent’s estate, also is not personally liable for the tax amount in excess of the value of the property.

Because only just debts of the decedent enforceable under the law are deductible (In re Estate of Graves (1909), 242 Ill. 212, 89 N.E. 978), and we have determined that the excess amount claimed here as a debt is not enforceable against petitioner or decedent’s estate, the trial court properly disallowed this amount as a just debt general deduction. If, in the future, petitioner pays the taxes or becomes liable for them by promising to pay them, petitioner may apply for a reassessment of the tax within one year from the date of payment or liability and obtain a refund for the amount of inheritance tax paid in excess of the amount due by the order of reassessment. Ill. Rev. Stat. 1981, ch. 120, pars. 382(c), (d).

For the reasons stated, the order of the circuit court of Cook County is affirmed.

Order affirmed.

McGILLICUDDY and O’CONNOR, JJ., concur.


author: PRESIDING JUSTICE WILSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY HALL, Defendant-Appellant.
    First District (5th Division)
    No. 81 — 974
    Opinion filed August 26, 1983.
    Rehearing denied October 5, 1983.

      Steven Clark and Kenneth L. Jones, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Bruce A. Cardello, and Harry John Devereux, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE WILSON

delivered the opinion of the court:

Following a jury trial, defendant was convicted of attempted rape, armed robbery, and armed violence based upon attempted rape (Ill. Rev. Stat. 1981, ch. 38, pars. 8 — 4, 18 — 2, 33A — 2) and sentenced to extended concurrent terms of 40 years on the armed robbery and armed-violence convictions. Because the attempted-rape charge was the predicate offense of the armed-violence charge, no sentence was entered on the attempted-rape conviction. On appeal, defendant contends that: (1) he was denied his constitutional right to counsel at the lineup; (2) the trial court abused its discretion in denying defendant’s motion in limine to exclude the use of his prior rape conviction for impeachment purposes; (3) he was denied his right to a fair trial by the State’s improper cross-examination of defense witnesses regarding their prior convictions and also by the State’s improper closing argument; (4) his conviction for armed violence must be reversed because (a) the indictment failed to allege the length of the knife blade, an essential element of the offense, (b) the jury was not instructed as to the definition of “dangerous weapon” and also made no findings as to the length of the blade, and (c) the State failed to produce any evidence that the knife blade allegedly used during the underlying offense was in fact a dangerous weapon as defined by the statute; and (5) the trial court erred in not vacating the attempted-rape conviction. For the reasons that follow, we affirm the convictions for armed robbery and armed violence predicated upon attempted rape and vacate the judgment for attempted rape.

Prior to trial, the trial court denied defense counsel’s motions in limine: to suppress confession, to suppress in-court identification and to prohibit reference to defendant’s prior conviction for rape. For purposes of this appeal, only the motions to suppress lineup identification and to prohibit reference to the prior conviction are pertinent. With respect to the lineup, defendant testified that on December 16, 1980, while incarcerated at Cook County jail on an unrelated charge, he was asked to participate in a lineup. Prior to the lineup, defendant was neither advised of his rights nor given permission to contact his attorney.

State’s Attorney Irving Miller testified that on December 16, 1980, he was assigned to the felony review unit at Cook County jail. Prior to the lineup in which defendant participated, Miller called the public defender’s office and requested that a public defender be present at the lineup. Although Miller had been informed that a particular public defender had previously been assigned to defendant on an unrelated pending charge, Miller made no attempt to find out the name of that public defender. Miller further stated that the indictments charging defendant for the offenses committed against complainant in the case at bar were not filed until after the December 16 lineup.

Thereafter, defense counsel argued his motion in limine to prohibit reference to defendant’s prior rape conviction on the ground that the resulting prejudice to defendant would far outweigh any probative value. In response, the State argued that the conviction satisfies the prerequisites for admissibility of prior convictions for impeachment purposes set forth in People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695. When the court denied defendant’s motion, defendant presented a supplemental motion requesting the court to confine reference to defendant’s prior conviction to “felony,” with no mention of rape. The court denied defendant’s supplemental motion, stating, “If it is permitted for impeachment purposes, the fact of a conviction of a particular offense is the thing that is permitted.” ■

At trial, complainant testified that on November 24, 1980, approximately 2 or 2:30 p.m., she was walking in the vicinity of Princeton and 62nd Street in Chicago when defendant approached her from behind and asked, “Don’t I know you?” Just before entering the viaduct walkway immediately ahead, complainant turned to see if she recognized defendant. When she did not, she shook her head “no” and kept walking. Defendant then ran up beside her and put his arm around her shoulder. When she pushed his hand away he grabbed her tighter and told her to be cool. At this point, complainant saw a knife in his pants, which she described as follows: “The handle of the knife was in the pants — part of the handle was in the pants and he had his hand over it.” The blade “was up about on his stomach.” Complainant then stood up and showed the jury the position of the knife, adding that the blade was “big.”

Defendant then asked complainant how much money she had. She started to take her wallet out of her purse when a car approached them. Defendant turned her around so that they were headed back toward the vacant lot and told her to put the wallet back in her purse. With his arm firmly around her, defendant led complainant toward a two-story building located on the other side of the vacant lot. When they walkéd up the stairs of the building, defendant asked complainant if she had any keys to the building. When she indicated that she did not, defendant pulled some keys out of his own pocket, but never actually attempted to enter the building. While he was reaching for the keys, complainant pulled back, but defendant grabbed her and held her tighter, leading her back down the building stairs and toward the viaduct. Before reaching the viaduct, defendant led complainant into a vacant lot and over to the back stairway of the apartment building. The stairway was concealed from the street by a shed. Complainant gave defendant her money, hoping he would leave. However, defendant forced her to sit on the stairs and told her to pull down her pants. She then noticed that he had an erection. In an effort to stall for time, complainant asked if she could unfasten her jacket first. After doing so, she sat down on the stairs, hoping he would just leave with her money. However, he again told her to take down her pants. By this time, defendant had removed the knife from his pants and was holding it in his hand. After she unfastened her pants, defendant laid the knife on one of the stairs above her. She then told him that she had to stand up in order to pull down her pants. As she stood up, she turned slightly and grabbed for the knife. Defendant grabbed her and they tumbled down the stairs. He then pulled her hand behind her and gained possession of the knife. As a result of the struggle, complainant received knife wounds on her hand and thumb.

Defendant then pushed complainant into a sitting position on the stairs, angrily pushed her face with his hand, and pulled her knit cap down over her eyes. When she pulled the hat back up, he pulled it down again even further. At this point, complainant realized the the farther down the hat was pulled, the better she could see through the stretched knit. As a result, she left it pulled down and was able to get a clear look at defendant. Defendant then told her to pull down her pants. When she did, he ripped open her blouse and started fondling her breasts. Then, while standing in front of her, with the knife in one hand and his penis in the other, defendant attempted to penetrate complainant. However, he lost his erection and failed to complete the attempt.

Defendant then noticed the gold chain around complainant’s neck. After she pleaded with him not to take it because of its sentimental value, defendant put on a pair of black leather gloves, trimmed with gold zippers and rings, and started to go through her purse. He took some money, told her to stay where she was, and walked away. Less than a minute later, he came back, took her gold chain and left.

After dressing and picking up her purse contents, complainant called the police from a nearby mini market. When they arrived, she described her assailant as male with black curly hair, dark brown complexion, 5 feet 11 inches to 6 feet tall, 160 to 170 pounds, wearing brown polyester pants, tan leather jacket and black leather gloves, trimmed with gold zippers and rings. Complainant did not see her assailant in person again until December 16, 1980, when she identified defendant from a six-person lineup. At trial, complainant identified defendant from a photo taken of the December 16 lineup, identified him in the courtroom, and also identified a pair of black leather gloves found next to defendant at the time of his arrest as the gloves that her assailant wore.

Next, Officer Allen McDonald of the Chicago police department testified that on November 25, 1980, while conducting a foot search of a building gangway in the vicinity of 1220 W. 57th Street, Chicago, he discovered defendant concealed under a rear stairwell. Upon searching the stairwell area, McDonald found two black leather gloves, trimmed with gold zippers and rings, and a folding knife with a silver blade and brown handle. McDonald placed defendant under arrest for a charge unrelated to the case at bar and advised him of his rights. At trial, McDonald identified the knife, which he described as having a 4/2-inch blade, and the gloves as those items which were found next to defendant at the time of his arrest. On cross-examination, McDonald characterized the knife as a pocketknife. He did not know if any fingerprints were taken from the knife.

Detective Charles Slattery of the Chicago police department then testified that on November 24, 1980, he was assigned to investigate the crime committed against complainant. As a result, he conducted a search of the back stairway area of the two-story apartment building on South Princeton and found three white buttons with thread remnants in the holes.

The State then rested its case and the court denied defendant’s motion for a directed verdict.

Next, Clarietha Banks, defendant’s fiancee, testified that defendant arrived at her house on the evening of November 23, 1980, and stayed through the next day. On November 24, approximately 1:30 or 2 p.m., Banks and defendant walked to the house of Debra Ashley, a friend, and from there all three walked to 59th and Ashland to do some shopping. Approximately 2:45 p.m., they entered “Utopia,” a store which sells clothing and toys. One of the salesmen at Utopia, Jim Clark, waited on defendant and it appeared to Banks that defendant and Clark knew each other. They remained in the store for approximately 30 minutes, after which they continued shopping elsewhere, returning to Banks’ apartment approximately 6 p.m. She never saw defendant wearing a tan leather jacket.

When shown the black leather gloves on cross-examination, Banks admitted to buying similar gloves for defendant and that defendant wore the gloves on November 24, 1980. On redirect, Banks stated that she has seen other people wearing similar gloves.

Next, Debra Ashley, acquaintance of defendant for approximately one year, testified that on November 24, 1980, defendant and Banks arrived at her apartment approximately 2:15 p.m., at which time they left to go shopping. They arrived at Utopia approximately 2:45 p.m.

On cross-examination, Ashley admitted that she had been convicted of theft twice, once in 1977 or 1978 and again in 1979. When the State asked if she had not also been convicted of theft in 1980, Ashley said, “No.” The court then queried, “What is your answer to that question?” Ashley responded, “I can’t recall.” The State again asked Ashley if she had not been convicted of theft three times. At this point, defense counsel requested a sidebar during which he informed the court that although there are three arrests for theft on Ashley’s record, she received one-year supervision for the first one. Thus, it is not considered a conviction. After continued discussion, the court asked both counsels to stipulate as to two theft convictions. The State agreed to so stipulate. However, defense counsel did not and moved for a mistrial which the court denied. The court then instructed the jury to disregard any implication from the last question asked of the witness by the State. When cross-examination resumed, Ashley stated that she, Banks and defendant stopped looking in the stores around 5:30 or 6 p.m. On redirect, Banks testified that when she was convicted of theft, she had pled guilty.

Jim Clark, salesman at Utopia, next testified that he had previously been convicted of armed robbery on a plea of guilty. On November 24, 1980, defendant arrived at Utopia approximately 2:45 p.m. and stayed for about 25 minutes. Clark has known defendant for approximately 12 years. However, prior to seeing him at Utopia, he had not seen defendant for approximately three years.

On cross-examination, Clark stated that there had been between 20 and 30 customers in Utopia on November 24, 1980. He could not recall on whom he waited immediately before or after waiting on defendant, nor could he recall at what specific time he waited on other customers. The following colloquy then ensued between Clark and the State regarding Clark’s prior convictions:

“STATE: By the way, you say that you have never been convicted for anything other than armed robbery?

CLARK: None other than that; serious crimes, no.

STATE: Well, what unserious crimes have you committed?

CLARK: Traffic violation.

STATE: How about theft?

CLARK: Theft.

STATE: Theft reduced to [sic] burglary; ever been convicted of that?

CLARK: Misdemeanor, yes.

STATE: When was that?

CLARK: I believe I was sixteen, seventeen.

STATE: How about — when were you convicted of the armed robbery?

CLARK: March the 17,1977.

STATE: So the misdemeanor theft, that is not a serious crime?

DEFENSE: I am going to object.

THE COURT: Sustained as to the form of the question.”

On redirect, Clark stated that he remembered the time of day that defendant came into his store because he was about to take his break. When shown the leather gloves, Clark testified that he has sold similar gloves. On recross, Clark stated that he did not remember who his first customer was immediately after returning from his break.

Defense counsel then requested a sidebar at which time he moved for a mistrial on the ground that the State improperly referred to Clark’s conviction record. The motion was denied.

After defendant rested his case, Detective Ray Luth of the Chicago police department testified as the State’s rebuttal witness. Luth stated that on November 25, 1980, he advised defendant of his rights and spoke with him at the seventh district lockup.

Luth told defendant that he was investigating the case of complainant which involved the crimes of attempted rape and armed robbery committed on the afternoon of November 24, 1980. Defendant told Luth that on that afternoon, he had been seeking employment at a steel mill located 8700 south, and was not in the vicinity of the crime. Luth further stated that defendant never mentioned anything about going shopping that day.

On cross-examination, Luth testified that he and defendant were alone during the interview on November 25. He did not recall if he took notes at the time of the conversation. His actual written report of the statement was not made until December 19, 1980. Luth further admitted that he probably wrote the report from memory. Although Luth had investigated other crimes during the period between November 25 and December 19, he did not think he was mistaken as to the information in his report.

On redirect, Luth testified that defendant was the only person he interviewed in the lockup on November 25, 1980. Further, between November 25 and December 19, defendant was the only person who told Luth that he had been looking for a job in the vicinity of 8700 south, and defendant was the only person Luth had interviewed regarding his whereabouts on November 24, 1980. At a sidebar conference, defense counsel moved for a mistrial on the ground that the State was “sneaking in things” to prejudice the jury. The motion was denied. On recross, Luth admitted that he never asked defendant to put his statement in writing. Thereafter, each side rested its case.

During the subsequent discussion in chambers regarding jury instructions, defense counsel objected to the State’s tendered non-IPI instructions regarding armed violence. In this regard, the following colloquy took place:

“STATE: Counsel, what is your objection?

DEFENSE: It was accepted anyway.

STATE: Judge, I’d like to know what counsel’s objection is. Perhaps if it’s an objection we could accommodate, I would be happy to accommodate him.

COURT: Want to state the basis for your objection so if it can be cured or something, we can endeavor to do it.

DEFENSE: I think it confuses the Jury and creates a problem. That’s enough.

COURT: All right, then it will be given over Counsel’s objection.”

Closing arguments then ensued after which the jury was instructed as to the law. After deliberation, the jury returned with a verdict of guilty of armed robbery, armed violence and attempted rape. The jury was polled. The court then entered judgment on the verdicts and revoked defendant’s bond.

Thereafter, at the sentencing hearing, defendant moved, in the alternative, for (1) a judgment notwithstanding the verdict, (2) arrest of judgment, or (3) a new trial. After a thorough discussion on the motions, the court denied all post-trial relief. Following counsels’ argumerits in aggravation and mitigation, the court applied the extended-term statute and sentenced defendant to concurrent terms of 40 years for armed robbery and armed violence. No sentence was entered for the attempted-rape conviction.

Opinion

I

We first address defendant’s allegation that the trial court erred when it failed to suppress a pretrial lineup identification made in violation of his constitutional right to counsel.

Specifically, defendant argues that he was placed in a lineup after adversary judicial criminal proceedings had been initiated against him; he was the focus of the lineup for the purposes of the instant prosecution; and he was identified at the lineup without the benefit of counsel.

It has been firmly established that a person’s constitutional right to counsel attached only at or after the time adversary judicial proceedings have been initiated against him in the way of a formal charge, preliminary hearing, indictment, information or arraignment. (Kirby v. Illinois (1972), 406 U.S. 682, 688-89, 32 L. Ed. 2d 411, 417, 92 S. Ct. 1877, 1882; People v. Burbank (1972), 53 Ill. 2d 261, 271-72, 291 N.E.2d 161.) However, in order for the right to counsel to attach, the judicial proceedings initiated against defendant must have been for the same offense as that for which the lineup was conducted. People v. Earl (1979), 78 Ill. App. 3d 188, 397 N.E.2d 97.

In the case at bar, defendant' was arrested on an unrelated charge on November 25, 1980. While incarcerated for that charge, defendant was asked to participate in a lineup to be viewed by complainant. As a result, complainant identified defendant as her assailant. Two days later, defendant was indicted for aggravated kidnaping, unlawful restraint, attempted rape, armed violence and armed robbery. The record is clear that judicial proceedings had not been initiated against defendant for the offenses against complainant prior to the lineup. Therefore, we hold that defendant was not entitled to counsel at the December 16,1980, lineup.

II

Defendant next contends that the trial court erroneously ruled that his prior conviction for rape was admissible for impeachment purposes, thus preventing defendant from testifying in his own behalf and impeaching the State’s rebuttal witness. In particular, defendant argues that this riding was an abuse of the standard set forth in People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695, since the prejudicial effect of the admission substantially outweighed any probative value of the conviction. Relying on People v. Wright (1977), 51 Ill. App. 3d 461, 366 N.E.2d 1058 and People v. Siebert (1979), 72 Ill. App. 3d 895, 390 N.E.2d 1322, defendant further asserts that rape is a crime of force and is not probative of truth or ve-' racity.

In People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695, the supreme court held that a defendant’s prior convictions may be admitted for impeachment purposes at the trial court’s discretion if (1) the prior offense was punishable by imprisonment in excess of one year or involved dishonesty, and (2) if either the conviction or release from confinement occurred within the preceding 10 years. The Montgomery court further stated that once the first two prerequisites are met, the court must then balance the prejudicial effect of the prior conviction on the jury against its probative value. As a guide to the balancing process, the Montgomery court suggested that the following factors be considered: (1) nature of the crime; (2) nearness or remoteness of the prior crime; (3) the subsequent career of the person; and (4) whether the crime was similar to the one charged.

In the case at bar, the initial prerequisites of Montgomery have been met, i.e., the prior rape conviction was punishable by imprisonment in excess of one year (Ill. Rev. Stat. 1981, ch. 38, par. 11 — 1); and both the conviction and the release occurred within the preceding 10 years. Therefore, testimony regarding the prior conviction was admissible unless the trial judge determined that its probative value was substantially outweighed by the danger of unfair prejudice. Defendant suggests that because the trial court did not specifically enunciate the underlying reasoning for its determination, it did not engage in any balancing. We cannot agree with this speculative conclusion. The principles of Montgomery were thoroughly discussed at the hearing. Thus, it must be assumed that the judge gave appropriate consideration to the relevant factors, and it is not necessary that they appear of record. (People v. Hovanec (1979), 76 Ill. App. 3d 401, 421, 394 N.E.2d 1430.) Moreover, application of the salient facts in the record to the balancing guideline articulated in Montgomery clearly supports the trial court’s decision.

1. The nature of the crime. Contrary to defendant’s position, we adopt the rationale of People v. Medreno (1981), 99 Ill. App. 3d 449, 425 N.E.2d 588, and concur with its finding that rape is a veracity-related crime, probative of a witness’ credibility. As the Medreno court stated, “[A] serious felony conviction evinces a disrespect for societal order and thus adversely affects [the defendant’s] veracity.” (99 Ill. App. 3d 449, 452.) Defendant argues that pursuant to People v. Wright (1977), 51 Ill. App. 3d 461, 366 N.E.2d 1058, a rape offense does not have a direct bearing on a witness’ honesty. We find Wright unpersuasive on this issue. In Wright, defendant was convicted of rape and attempted deviate sexual assault. The case hinged on the credibility of defendant and the complaining witness. The State, over defendant’s objections, moved to admit two prior aggravated battery convictions, both less than two years old. The court admitted the prior convictions and defendant was found guilty. In reversing and remanding defendant’s conviction, the Wright court found that the trial court admitted the prior conviction to show defendant’s propensity to engage in violent crimes, and not to impeach his credibility, thereby abusing its discretion. We do not find this to have been the basis for admission of the prior conviction in our case and thus, find Wright distinguishable.

2. Nearness or remoteness. We view this factor from two distinctly differently perspectives, both of which weigh in favor of probative value. First, the rape offense for which defendant was previously convicted occurred five years before the attempted-rape offense at issue. In our opinion, this five-year gap between offenses sufficiently removes any taint of propensity in the minds of the jurors.

Second, defendant was released from prison in February 1977 and indicted for the crimes against complainant as well as for an unrelated charge less than two years later. It is well established that recency between release and arrest reflects negatively on defendant’s likelihood of being rehabilitated, and, in turn, impacts on his credibility. People v. Medreno (1981), 99 Ill. App. 3d 449, 453, 425 N.E.2d 588.

3. Subsequent career of defendant. Although this factor is irrelevant to the case at bar, we note that the record reveals that at the time of defendant’s arrest, he was “AWOL” from the parole office and a warrant had been issued in that regard on December 10, 1980.

4. Whether the crime was similar to the one charged. Case law is clear that a prior conviction for a crime which is similar to the crime now charged does not mean it cannot be introduced. (People v. Fleming (1980), 91 Ill. App. 3d 99, 109, 413 N.E.2d 1330.) Rather, similarity is simply a factor which the court considers when balancing the probative value against the prejudicial impact. In light of the foregoing discussion, we do not find that the court abused its discretion in balancing the relevant factors.

Defendant further argues that denial of the suppression motion prevented him from testifying on his own behalf. We find People v. Ganter (1977), 56 Ill. App. 3d 316, 371 N.E.2d 1072, dispositive of this issue. In Ganter, the court observed that the mere fact that a defendant chooses not to risk the possibility of prejudicial impeachment by prior conviction does not render the trial court’s ruling to admit the prior conviction erroneous. If that were the case, any time a defendant was unsuccessful in suppressing use of a prior conviction, he could defeat the trial judge’s discretion on appeal. We concur with the Ganter court’s observation and further note that defendant’s alibi testimony would have been merely cumulative of testimony given by the three defense witnesses and, thus, would have had negligible probative value.

Finally, our determination that the trial court did not abuse its discretion in denying defendant’s motion to exclude admission of defendant’s prior rape conviction for impeachment purposes obviates the need to discuss defendant’s alternative contention that the trial court erred by failing to limit the prior conviction admission to that of “felony.”

Ill

Next, defendant argues that he was denied his right to a fair trial by the State’s improper cross-examination of defense witnesses Debra Ashley and James Clark concerning their prior convictions and also by the State’s improper and prejudicial remarks during closing argument.

First, defendant cites the exchange between the State and Ashley during which the State asked her if she had not been convicted of theft three times instead of just two. At a sidebar conference immediately following this exchange, defense counsel argued that only two of the three convictions could be considered by the jury because the witness had received supervision for the first one. In response, the State argued that Ashley had violated her supervision when she was arrested for a second theft within a year after the first conviction, and, thus, the first conviction could be considered. The court, however, noted that a petition regarding violation of her supervision had never been filed. Thus, her first conviction could not be raised at this time. The court then suggested that both counsels enter into a stipulation regarding Ashley’s two theft convictions. The State agreed to do so, but defense counsel did not. Yet, in his brief, defendant alleges as error the trial court’s failure to inform the jury of the stipulation. Defendant’s allegation is clearly not supported by the record. Further, we find that the trial court’s instruction to the jury following the sidebar conference that they should “disregard any implication from that last question or answer” cured any prejudice that may have resulted from the exchange. People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200.

Regarding cross-examination of defense witness James Clark, defendant argues that the State’s inquiry as to whether Clark’s theft conviction had been reduced from burglary transcended the bounds of prosecutorial propriety which limits cross-examination to proof of the prior conviction testified to on direct. We refrain from addressing this allegation on the ground that defendant has waived review by failing to specifically object to the State’s inquiry at trial. (People v. Jackson (1981), 84 Ill. 2d 350, 358, 418 N.E.2d 739.) Defendant’s only objection during that portion of the cross-examination was to the State’s comment that Clark apparently did not consider theft to be a serious crime. Moreover, in light of the fact that both Ashley and Clark admitted to their theft convictions, and Clark also admitted to a conviction for armed robbery, we fail to see how the State’s remarks regarding those offenses constituted a material factor in defendant’s conviction. People v. Clark (1972), 52 Ill. 2d 374, 390, 288 N.E.2d 363.

With respect to the State’s closing argument, defendant cites the following four alleged errors which he contends “were extremely improper, and successfully designed to play on the jury’s prejudice”: (1) the State denigrated its burden of proof; (2) the State characterized defense witnesses as liars; (3) the State accused defense counsel of distorting the evidence; and (4) the State referred to defense witness Clark as an “armed robber.” After reviewing the record, we find that defendant has waived review of the first three alleged errors by his failure to object to them at trial or to raise them as error in his post-trial motion. (People v. Jackson (1981), 84 Ill. 2d 350, 358, 418 N.E.2d 739.) With respect to the State’s characterization of defense witness Clark as an “armed robber,” we concur with the trial court’s ruling that the State’s remark was based on the evidence and, therefore, was within the bounds of proper closing argument. People v. Hine (1980), 88 Ill. App. 3d 671, 679-80, 410 N.E.2d 1017.

IV

Next, defendant argues that his conviction for armed violence must be reversed because: (1) the indictment failed to allege the length of the knife blade, an essential element of the offense; (2) the jury was not instructed as to the definition of “armed with a dangerous weapon” and made no finding as to the length of the blade; and (3) the knife allegedly used during the underlying offense did not meet the statutory definition of a dangerous weapon.

This portion of defendant’s argument concerns the construction and validity of sections 33A — 1 and 33A — 2 of the Criminal Code of 1961, which provide, respectively:

“Definitions, (a) ‘Armed with a dangerous weapon.’ A person is considered armed with a dangerous weapon for purposes of this Article, when he carries on or about his person or is otherwise armed with a category I or category II weapon, (b) A category I weapon is a pistol, revolver, rifle, shotgun, spring gun, or any other firearm, sawed-off shotgun, a stun gun or taser as defined in paragraph (a) of Section 24 — 1 of this Code, knife with a blade of at least 3 inches in length, dagger, dirk, switchblade knife, stiletto, or any other deadly or dangerous weapon or instrument of like character. ***.” Ill. Rev. Stat. 1981, ch. 38, par. 33A — 1.
“A person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois Law.” Ill. Rev. Stat. 1981, ch. 38, par. 33A — 2.

Defendant first argues that pursuant to statute, a knife is considered a dangerous weapon only if it has “a blade of at least three inches in length.” Thus, because the length of the blade is an essential element of the offense of armed violence which the State failed to specify in its indictment, the indictment was invalid and the conviction based upon it must be reversed.

Section 111 — 3(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 111 — 3(a)) contains the requirements for a charging instrument. A charging instrument must, inter alia, state the name of the offense, cite the statutory provision, and set forth the nature and elements of the offense. We believe that the indictment for armed violence in the present case adequately set forth the nature and elements of the armed-violence offense by stating that it was based on the commission of the attempted rape “while armed with a dangerous weapon: to wit a knife.” Contrary to defendant’s contention, the statute does not preclude all knives with blades shorter than three inches from being characterized a dangerous weapon. As the State correctly points out, defendant conveniently overlooked that portion of the statute which states, “*** or any other deadly or dangerous weapon or instrument of like character.” Thus, while a knife with a three-inch blade is per se a dangerous weapon pursuant to section 33A — 1, similar instruments fall within the purview of the statute if it is established that they became a dangerous weapon when used in a manner dangerous to the physical well-being of the individual threatened. (People v. Hill (1977), 47 Ill. App. 3d 976, 978, 362 N.E.2d 470.) Moreover, for purposes of sufficiency of the indictment, we do not find that the absence of blade-length specificity resulted in substantial prejudice to defendant’s ability to prepare a defense. People v. Foust (1980), 82 Ill. App. 3d 516, 522, 401 N.E.2d 1329.

Defendant further contends that the jury was improperly instructed as to the definition and elements of armed violence, thereby depriving him of the right to a fair trial.

The jury instructions regarding armed violence stated, in pertinent part:

“A person commits the crime of Armed Violence when, while armed with a dangerous weapon, he commits the crime of Attempt Rape.” People’s non-I.P.I. No. 14.

“To sustain the charge of Armed Violence, the State must prove the following propositions:

First, that Anthony Hall was armed with a dangerous weapon;

Second, that Anthony Hall, while armed with a dangerous weapon, he committed the crime of Attempt Rape.” People’s non-I.P.I. No. 15.

The general rule is that a trial court is under no duty to give instructions which are not requested by either party, and the failure to object to those instructions given waives any errors for review. As a caveat, in criminal cases, substantial defects in instructions are not waived by failure to make timely objections if the interest of justice requires it. However, one who seeks to avoid waiver of defects in instructions for failure to make specific objections has the burden of establishing (a) that the defects in the instruction are substantial, and (b) that the giving of the instruction resulted in denial of a fair trial to defendant. People v. Suerth (1981), 97 Ill. App. 3d 1005, 1011, 423 N.E.2d 1185.

In the present case, although defense counsel objected to the State’s instructions regarding armed violence, we find that the objection was so vague and ambiguous as to be rendered ineffectual in preserving the issue. Further, the State expressly asked for specific reasons for the objection at the time it was made. In response, defense counsel merely stated that the armed violence instruction would confuse the jury and create a problem. In our opinion, defendant’s failure to specifically object to those instructions constituted a waiver of their alleged defects. People v. Van Winkle (1980), 86 Ill. App. 3d 289, 408 N.E.2d 29, modified on other grounds (1981), 88 Ill. 2d 220, 430 N.E.2d 987.

Further, we do not find that the absence of a definition for the term “dangerous weapon” was a substantial defect that denied defendant a fair trial. The jury was instructed that an element of armed violence was that defendant must have been armed with a dangerous weapon. The only weapon presented into evidence was a knife found next to defendant at the time of his arrest. Thus in view of the verdict, it is apparent that the jury found that defendant was armed with that knife which was found near him at the time of his arrest. In this regard, defendant argues that complainant never identified the knife found near defendant as the one used by her assailant. We decline to attach any importance to this lack of direct evidence. Circumstantial evidence is sufficient to prove that a defendant was armed while committing an offense. Further, a weapon is sufficiently connected to a crime if it is shown that the weapon found on the defendant when arrested is suitable for commission of the crime charged. (People v. Suerth (1981), 97 Ill. App. 3d 1005, 1013, 423 N.E.2d 1185.) In the present case, the fact that complainant testified that defendant threatened her with a knife, and the next day defendant was arrested in the vicinity of the crime with a knife next to him was sufficient for the jury to conclude that defendant was armed with that knife at the time of the offense. In our opinion, the evidence was not so improbable, contradictory, unsatisfactory or inconclusive as to the identity of dangerous weapon that the absence of a precise definition of the term could be considered a substantial defect in jury instructions. People v. Perez (1981), 101 Ill. App. 3d 64, 427 N.E.2d 820.

Lastly, defendant urges that the armed-violence charge cannot be supported because a knife with a blade of indeterminate length cannot be deemed a “dangerous weapon” under the statute. We disagree and find People v. Hill (1977), 47 Ill. App. 3d 976, 362 N.E.2d 470, dispositive of the issue.

In Hill, the court was confronted with the question as to whether an unloaded air pistol was a dangerous weapon. In determining that it was, the court stated,

“That the instrumentality used to threaten a victim of a robbery is capable of being used in a manner to cause harm or injury thereby compels a finding that the instrumentality is a dangerous weapon.” 47 Ill. App. 3d 976, 978.

In the present case, complainant testified that in attempting to grab the knife away from defendant, she cut her thumb and jabbed her hand with the blade. Further, complainant described the blade as “big” and stated that when it was inserted in defendant’s pants, the blade came up to his stomach. She then physically demonstrated to the jury how the knife was positioned on defendant’s person. This evidence provides ample support for a conclusion that the knife used in the commission of the offense was capable of causing harm or injury. Thus, we conclude that even if the knife used by defendant was not per se dangerous, i.e., enumerated in the statute, it was transformed by defendant’s usage into a dangerous weapon well within the meaning of the statute. People v. Lee (1977), 46 Ill. App. 3d 343, 348, 360 N.E.2d 1173.

V

Next, defendant argues that the trial court erred in not vacating the conviction of attempted rape, the underlying felony for the armed-violence conviction. The State agrees and we concur. Pursuant to People v. Donaldson (1982), 91 Ill. 2d 164, 435 N.E.2d 477, convictions cannot stand on both an armed-violence charge and its predicate offense. Therefore, we conclude that the trial court erred in not vacating the attempted-rape conviction.

VI

Finally, the State requests that pursuant to section 8 of “An Act concerning fees and salaries ***,” section 110 — 7(h) of the Code of Criminal Procedure of 1963, and section 13 of the Criminal Code of 1874 (Ill. Rev. Stat. 1981, ch. 53, par. 8; ch. 38, pars. 110 — 7(h), 180— 3), this court grant costs to the State and incorporate same as part of its judgment in the amount of $50 for defending the appeal and an additional $25 for oral argument.

We find the following statutory provisions determinative of this issue:

“State’s attorneys shall be entitled to the following fees, ***:
* * *
For each case of appeal taken from his county or from the county to which a change of venue is taken to his county to the Supreme or Appellate Court when prosecuted or defended by him, $50.
For each day actually employed in the trial of a case, $25; in which case the court before whom the case is tried shall make an order specifying the number of days for which a per diem shall be allowed.” Ill. Rev. Stat. 1981, ch. 53, par. 8.

Based on the aforementioned, we hereby grant the State’s request for an appeal fee of $50 and deny its request for an additional $25 for oral argument. Our denial is predicated on our interpretation of the per diem provision of the statute which we find clearly refers to the actual trial in the circuit court, and not to the oral argument on appeal.

Accordingly, the judgments entered by the circuit court of Cook County for armed robbery and armed violence predicated upon attempted rape are affirmed; and the judgment for attempted rape is vacated. Costs of $50 shall be taxed to defendant pursuant to section 8 of “An Act concerning fees and salaries ***” and section 110 — 7(i) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 53, par. 8; ch. 38, par. 110 — 7(i)).

Affirmed as modified.

LORENZ and SULLIVAN, JJ., concur.

      Prior to this date, complainant identified defendant as her assailant from a group of mug shots brought to her home by police officers.

      The State subsequently moved to nol pros the charges for aggravated kidnaping and unlawful restraint.


author: JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LOLITA ANDERSON, Defendant-Appellant.
    First District (4th Division)
    No. 82 — 1198
    Opinion filed September 1, 1983.
    Dennis A. Giovannini and Herbert L. Goldberg, both of Chicago, for appellant.

      Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Michele A. Grimaldi, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

Defendant, Lolita Anderson, appeals her conviction for unlawful use of a weapon (Ill. Rev. Stat. 1979, ch. 38, par. 24 — 1(a)(10)) and raises the following issue for review: whether she was proved guilty beyond a reasonable doubt of possessing a weapon while not on her land, or in her own abode or fixed place of business.

We reverse.

At trial, George Lipinski, a Chicago policeman, testified that on January 8, 1982, at 3 p.m., he received a radio message. He went to a third-floor apartment at 4532 South Indiana Avenue in Chicago, Illinois, and talked with Darlene Murphy, the complaining witness. Then he went to an apartment at 4534 South Indiana Avenue and talked with a tenant named Gary Elston. After he entered Elston’s apartment, Lipinski saw defendant and arrested her. After searching defendant, Lipinski discovered a loaded .38-caliber revolver.

Darlene Murphy, the complainant, testified that she lived in a third floor apartment at 4532 South Indiana Avenue in Chicago. At about 3 p.m. on January 8, 1982, the janitor entered Murphy’s apartment to distribute mail, and defendant was with him. After the janitor left, Murphy and defendant had a conversation. When defendant said she wanted to “party,” Murphy said she was not interested. Defendant pulled out a gun and said, “B, I can kill you if I want to.” After more conversation, defendant put away the gun and then left. Murphy called the police.

Gary Elston testified that on January 8, 1982, he lived alone in a third-floor apartment at 4534 South Indiana Avenue.

The prosecution introduced a certified statement of defendant’s conviction of voluntary manslaughter on May 10, 1978. Defendant had been paroled on November 21,1979.

The defense rested without presenting any witnesses. The trial court found defendant guilty of unlawful possession of a loaded revolver and sentenced her to two years. This offense occurred within five years of her release for a felony conviction. (Ill. Rev. Stat. 1979, ch. 38, par. 24 — 1(b).) Defendant appeals.

Defendant was convicted of violating the provision of the unlawful use of weapons statute which provides as follows:

“A person commits the offense of unlawful use of weapons when he knowingly:
(10) Carries or possesses in a vehicle or on or about his person within the corporate limits of a city, village or incorporated town, except when on his land or in his own abode or fixed place of business, any loaded pistol, revolver, stun gun or taser or other firearm; ***.” Ill. Rev. Stat. 1979, ch. 38, par. 24— 1(a)(10).

To prove defendant guilty beyond a reasonable doubt of unlawful possession of a weapon, the People had to prove that defendant was in possession of the revolver and not on her land, in her own abode or fixed place of business. (Cf. People v. Chmilenko (1976), 44 Ill. App. 3d 1060, 358 N.E.2d 1247, discussion of similar language in Ill. Rev. Stat. 1973, ch. 38, par. 24 — 1(a)(4).) The complaining witness and Officer Lipinski testified that defendant was in possession of the revolver. The complaining witness testified as to where she lived and Elston testified that he lived alone, thus establishing the defendant was not in her own abode. However, no evidence was introduced which proved that defendant was not on her own land or fixed place of business.

The burden is on the prosecution in a criminal case to establish beyond a reasonable doubt not only a defendant’s guilt but also the essential elements of the crime. (People v. Sanford (1962), 24 Ill. 2d 365, 368, 181 N.E.2d 118, 119.) In the case at bar, the prosecution did not meet its burden; thus, the judgment of conviction cannot stand. We hold that defendant was not proved guilty beyond a reasonable doubt of unlawful possession of a weapon.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed.

Reversed.

ROMITI, P.J., and LINN, J., concur.