author: JUSTICE UNVERZAGT

text:
    DANIEL GOCZESKI, Plaintiff-Appellee, v. THE HORIZON DEVELOPMENT CORPORATION et al., Defendants-Appellants.
    Second District
    No. 81-86
    Opinion filed November 24, 1981.
    Stuart Smith, of Wexler, Siegel and Shaw, Ltd., of Chicago, for appellants.

      Paul W. Casbarian, of Casbarian and Furlett, Ltd., of Schaumburg, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

This is an appeal from a default judgment for $23,580 awarded the plaintiff for breach of an employment contract.

Horizon Development Corporation (hereafter Horizon), through its president, James Joyce, made an offer of employment to the plaintiff, Daniel Goczeski, which Goczeski received orally on or about July 17, 1979, and which was later confirmed by letter. He commenced employment with Horizon on or about August 1,1979 (the precise date he began work is not shown by the record before us). Horizon’s letter specified that Goczeski would be paid a base salary of $30,000 per year, plus additional incentive pay based on the final construction costs of certain houses then under construction by Horizon. In addition, some travel expenses were to be allowed.

Goczeski was paid his agreed base salary up to February 1, 1980; however, Horizon got into financial difficulties and was not able to pay him his salary between February and June 1980. No appellee’s brief has been filed, but according to the appellants’ brief Goczeski was informed of these financial difficulties and continued to render services to Horizon thereafter. On June 10, 1980, Goczeski demanded his back pay. According to the defendants’ brief this was paid to him. However, the complaint filed by Goczeski alleges that he was owed back pay from March 1,1980, at the time he filed his complaint. Goczeski left Horizon’s employment about June 10,1980, and filed suit for back pay based on his base salary of $30,000 per year from March 1, 1980, plus incentive pay and certain consequential damages. The complaint also sought $50,000 exemplary damages. In a second count, Chestnut Grove Corporation was also named as a defendant, since it was alleged in the complaint that the plaintiff had rendered services to that corporation, allegedly also owned and controlled by Joyce. The letter offering employment was on the stationery of Horizon, and it is not alleged there was any specific contract between the plaintiff and Chestnut Grove Corporation. Upon being served with summons Joyce attempted to negotiate a settlement on behalf of Horizon but nothing definite was agreed upon between the parties. Joyce did not employ an attorney, and no answer as to the complaint was made on behalf of either Horizon or Chestnut Grove Corporation. There is a dispute as to the result of the negotiations. Horizon claims the matter was left open and there was no indication that it would be pursued to judgment. The plaintiff contends no promises were made by him or his attorney as to future action and that Horizon’s settlement offer was definitely rejected. In any event, on September 10, 1980, the plaintiff moved for default judgment on the basis of no answer having been filed by Horizon within the time allowed for answer. No notice of this motion was sent to Horizon or Chestnut Grove Corporation. Prove-up was on the same day. The prove-up was based solely on the plaintiff’s testimony that he had not been paid for his incentive pay of $10,080 which he claimed was due him, in addition to a $5,000 pay raise that he had earned and had not received. He also claimed that he had lost two months’ work before he found other employment and that he had incurred other expenses resulting from the defendants’ breach of contract. The trial court awarded the plaintiff $23,580 as damages, comprised of $15,780 for actual damages and $7,800 for consequential damage. No claim was made at the prove-up for unpaid base pay, contrary to the allegations of the complaint.

Horizon and Chestnut Grove Corporation did not receive any notice of the motion for default judgment. On October 24, 1980, the plaintiff served Horizon with a citation to discover assets, pursuant to the judgment he had received. Horizon claims this was its first notice that a default judgment had been entered against it. Upon receiving the citation to discover assets, Horizon filed a section 72 petition, joined in by Chestnut Grove Corporation, to open the judgment, contending it did not receive prior notice of the motion for default judgment, that it was only notified that the judgment had been entered on October 24, more than 30 days later, by the citation to discover assets, that it had a meritorious defense to the claim and, moreover, that the plaintiff had misled Horizon by giving the impression that the dispute was still under negotiation and that no action would be taken to seek a judgment.

The trial court denied the section 72 petition on the ground that the defendants had not shown due diligence in the matter, since they had not made any answer nor employed an attorney to represent them or respond to the complaint until after the default judgment was entered and there was a citation to discover assets.

We think the trial court was correct in so holding. While default judgments are not favored in the law (Schmidt v. Kiely (1977), 51 Ill. App. 3d 122; Jones v. Sullivan (1976), 34 Ill. App. 3d 786), in Jones, the appellate court, after recognizing that general principle, affirmed a default judgment in the defendant’s favor for failure of the plaintiffs to appear. In Grafs Beverages of Illinois, Inc. v. Tauber (1977), 50 Ill. App. 3d 1047, this court affirmed a default judgment against the defendant, who had not filed an answer or appearance. While recognizing that the trial court does not have unlimited discretion in granting default judgments, we affirmed judgment of default against the defendant because of his failure to show that he had been reasonably diligent in protecting his rights. The same result was reached in Ingram v. MFA Insurance Co. (1974), 18 Ill. App. 3d 560, where this court held that failure to notify the defendant of the entry of a default judgment did not excuse the defendant from the result of such judgment, where it had utterly failed to show due diligence in protecting its rights by making an answer or appearance. See also Westphall v. Trailers, Campers, Campgrounds, Inc. (1979), 76 Ill. App. 3d 205, which reached the same result for the same reason.

While we are in accord with the trial court’s entry of the default judgment, based on the cases cited, we think the trial court erred in assessing specific damages against the defendants without affording them an opportunity to contest the basis of such damage or the extent thereof. In Elfman v. Evanston Bus Co. (1963), 27 Ill. 2d 609, our supreme court held that a default judgment does not foreclose the defendant on the issue of damages where there had been no opportunity for the defendant to be heard on that issue. Citing Elfman, the appellate court in Hall v. McMillian (1972), 8 Ill. App. 3d 448, granted relief from a default judgment as to the issue of damages. (See also Whitworth v. Morgan (1977), 46 Ill. App. 3d 292.) In National Bank v. First Wisconsin National Bank (1977), 53 Ill. App. 3d 482, this court, in vacating a personal deficiency judgment against the defendant, quoted the language in Straus v. Biesen (1926), 242 Ill. App. 370, 374, referred to in the Elfman decision:

“ ‘The defendants were not in complete default. Their default admitted the cause of action, but not the amount of damages. Consequently, under the rule,- they were entitled to notice of the assessment of damages so that they might participate in the proceedings.’ ” 53 Ill. App. 3d 482, 490.

In the case before us, no notice was given to the defendants as to the motion for default judgment, nor was there any attempt at execution on the judgment within 30 days. (Ellman v. De Ruiter (1952), 412 Ill. 285.) While they may be held to have been rightfully defaulted as to the issue of liability for failure to appear or answer, the cases cited indicate they had a right to be heard on the issue of damages where they had not been previously advised of the plaintiff’s intention to move for a default judgment. In this case the damages were not liquidated and, indeed, in one particular were disputed in the defendants’ section 72 petition as not having been due. Fundamental fairness requires that the defendants have an opportunity to contest the amount claimed.

The judgment of the circuit court of Du Page County is reversed as to the issue of damages only and the cause remanded to the trial court for a hearing on that question.

Affirmed in part; reversed in part and remanded with directions.

SEIDENFELD, P. J., and REINHARD, J., concur.


source: Caselaw Access Project

author: JUSTICE REINHARD

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v GEORGE BENEDETTO, Defendant-Appellant.
    Second District
    No. 80-874
    Opinion filed November 24, 1981.

      Terry Fawell, of Oakbrook, for appellant.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Phyllis J. Perko and Martin P. Moltz, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE REINHARD

delivered the opinion of the court:

The defendant, George Benedetto, was charged by information with the offenses of burglary (Ill. Rev. Stat. 1977, ch. 38, par. 19—1(a)), possession of burglary tools (Ill. Rev. Stat. 1977, ch. 38, par. 19 — 2), and theft over $150 (Ill. Rev. Stat. 1977, ch. 38, par. 16 — 1(a)(1)) as a result of an incident occurring on December 18, 1978. He pleaded guilty to the burglary charge and was sentenced to a three-year term of imprisonment for that offense. The State nolle prossed the remaining counts. The court also denied the defendant’s petition to be treated as a drug addict under the provisions of the Dangerous Drug Abuse Act (Act) (Ill. Rev. Stat. 1977, ch. 911/2, par. 120.1 et seq.).

The defendant appeals and presents four issues for review: (1) whether the trial court abused its discretion in refusing to grant his motion to withdraw his guilty plea; (2) whether the court failed to exercise any discretion or abused its discretion in determining that the defendant was not an addict; (3) whether the trial court erred in its interpretation of section 5 — 5—3(c) (2) (G) of the Unified Code of Corrections (Code) (111. Rev. Stat., 1978 Supp., ch. 38, par. 1005 — 5—3(c)(2)(G)) as it relates to sections 9 and 10 of the Act (Ill. Rev. Stat. 1977, ch. 91/2, pars. 120.9, 120.10), and whether the defendant was entitled to elect to proceed under the law as construed by People v. Teschner (1980), 81 Ill. 2d 187, 407 N.E.2d 49, or the law as revised by Public Act 81-851, effective September 20, 1979; and (4) whether the trial court properly concluded that section 5—5—3(c)(2)(G) precluded the defendant from receiving a sentence of probation.

On July 12,1979, the defendant informed the court that he wished to withdraw his prior plea of not guilty to the charges in question and enter a plea of guilty to the charge of burglary in return for the State’s agreeing to nolle pros the remaining charges. After the court began to admonish the defendant, pursuant to Supreme Court Rule 402 (Ill. Rev. Stat. 1977, ch. 110A, par. 402), of his rights and the maximum and minimum sentences for burglary, a Class 2 felony, the State informed the court that the defendant would not be eligible for a sentence of probation under the provisions of section 5 — 5—3(c)(2)(G) because he had a prior conviction of a Class 2 felony (burglary) within 10 years of the commission of the present burglary offense. The court then advised the defendant that he was ineligible for probation for the reason the State had advanced. After a recess to allow the defendant to consider his plea and discuss the matter with his counsel and prior to the completion of the plea, the court continued the proceeding for one day to allow defendant to prepare and file a petition to be treated as a drug addict under the Act.

On the following day, July 13, the defendant filed his petition for treatment as an addict in which he alleged that he was an addict and none of the conditions set forth in section 8 of the Act (Ill. Rev. Stat. 1977, ch. 91/2, par. 120.8) precluding eligibility for such treatment applied to him. He requested that the court determine whether he qualified for treatment under the Act before he entered a plea. The court denied this request stating that the defendant had been scheduled for trial the previous Monday, the court continued the matter having been told there would be a plea, and that the defendant should have submitted his petition at an earlier date. Accordingly, the court indicated that it would rule on the petition either after the defendant pleaded guilty or after trial. The court then completed the admonishments under Supreme Court Rule 402 which it had commenced the day before. The defendant admitted that there was no agreement regarding the nature of the sentence on the burglary charge, that the only plea arrangement was that the State would nolle pros the remaining charges, and that no one had promised him what the disposition would be regarding his petition to be treated as an addict. Defendant persisted in his plea of guilty. The court then accepted the plea and found the defendant guilty after determining that a sufficient factual basis existed for the burglary charge. The matter was set for a presentence report and a hearing on the petition for treatment as an addict.

In establishing the factual basis for the defendant’s guilty plea, the prosecutor stated that the State’s witnesses would testify that the Naperville police department responded to a call which reported the sound of breaking glass in the vicinity of Washington and Jefferson Streets in Naperville, that the police discovered a broken window in the Naperville Pharmacy, which was owned by Daryl Jelinek, and upon entering the establishment found the defendant hiding behind the pharmacy’s drug counter. The defendant held a laundry bag containing a Polaroid camera and 117 bottles of various drugs, all of which merchandise was owned by Jelinek, who had not given the defendant permission to enter the building or to remove any merchandise from it. Both the defendant and his attorney agreed that the State’s witnesses would so testify if they appeared.

On January 25,1980, the matter came before the court for a hearing on the defendant’s petition for treatment as an addict. The State argued that, since the defendant was ineligible for probation under section 5 — 5—3(c)(2)(G) of the Code, he was similarly ineligible for treatment under section 10 of the Act. The defendant maintained that he need not first be qualified for probation to be eligible for drug addiction treatment under the Act and, further, that probation as defined and used in the Code carries a different connotation than it does under the Act. After a conference in chambers, the defendant orally asked leave to withdraw his guilty plea, and the State objected. Without ruling thereon, the court then allowed the defendant to introduce testimony as an offer of proof relating to his alleged addiction and his eligibility for treatment under the Act.

George Stovilkovic, an employee of T.A.S.C. (Treatment Alternatives to Street Crime), stated that another employee of his organization, Mr. Edinburg, had examined the defendant on October 23, 1979, and had determined that he was eligible for treatment as a drug addict. He related that he too spoke with the defendant and did not observe any physical signs of addiction, although the defendant did know a lot about drugs and told him that he was presently taking codeine. While he was inclined to believe that the defendant was a drug addict in need of rehabilitation, Stovilkovic was unable to determine positively that the defendant was a drug addict in light of the absence of physical signs of addiction and without having conducted a urinalysis.

The defendant testified that he is married and has been gainfully employed as a carpenter with various construction companies on a continuous basis from about June 1975, when he left college, until the present time. He stated that he used heroin for a six-month period in 1975 and that he attempted to treat his addiction through Dr. Schurz’ methadone maintenance program which he attended three times a week from May 1975 to November 1977. He also revealed that he has used cannabis within the last two years, that he has been taking codeine and valium for the past year and one-half to help him sleep, and that he takes 120 milligrams of codeine daily. He has not taken any drugs other than marijuana, valium and codeine within the last two years and is not currently under a doctor’s care for any type of physical malady. He stated that he “could be addicted” to codeine. The defendant also admitted that he is currently on probation in Cook County for driving with a revoked license, possession of a controlled substance, and burglary. He further remarked that he was discharged from the United States Army in 1978 for reasons unrelated to the use of drugs and that the physical examination he underwent upon separation from the service revealed no medical problems of a physical nature. In addition, the defendant said that he was taking a barbituate, tuinal, on the day of the burglary at issue and his use of this drug “enticed” him to commit that crime.

Jose Hildago, the defendant’s probation officer in Cook County, related that during one of his meetings with the defendant he noticed that Benedetto appeared to be under the influence of a drug due to a redness in his eyes and his nervous condition. During that meeting, the defendant denied he was using heroin but stated that he was on drugs. Hildago testified he did not object to defendant’s election for treatment under the Act. (See People v. Phillips (1977), 66 Ill. 2d 412, 362 N.E.2d 1037.) After argument by both parties, the court ruled that the above evidence was insufficient to prove that the defendant was a drug addict. The court stated that it was inclined to allow the defendant to withdraw his guilty plea, and, after the State objected, the matter was continued for a hearing to allow the defendant to file a written motion to withdraw his plea.

In a written order entered on March 27, 1980, the court determined that the defendant was ineligible for treatment under either section 9 or section 10 of the Act in light of section 5 — 5—3(c)(2)(G) of the Code because he had been convicted of a prior burglary, a Class 2 felony, on September 25, 1978, in the circuit court of Cook County, Illinois, in case No. 78-1-20236. The court also found that, after having heard testimony of the witnesses regarding the question of the defendant’s alleged addiction, the evidence was insufficient to establish the defendant’s addiction.

On March 27, the defendant also asked the court for leave to withdraw the motion which he had filed on February 19,1980, in which he sought to withdraw his guilty plea. The motion of February 19 to withdraw his guilty plea pursuant to Supreme Court Rule 604(d) (III. Rev. Stat. 1979, ch. 110A, par. 604(d)) stated, in effect, that the defendant, upon the advice of counsel, entered his plea of guilty on the assumption that his prior Class 2 felony conviction would not preclude him from electing treatment under the Act if he were otherwise determined to be eligible for treatment as a drug addict. The defendant’s affidavit, which was attached to the motion to withdraw, states, in consonance with the motion, that he entered his guilty plea upon the advice of counsel that the court could exercise its discretion to permit him to be treated as a drug addict even though he had a prior Class 2 felony conviction and that he would never have entered a plea of guilty to the offense of burglary if he had known that the court would be precluded from exercising its discretion to treat him as an addict solely on the basis that he had a prior Class 2 felony conviction. The court interpreted the defendant’s motion for leave to withdraw his motion to withdraw his guilty plea as a request to reinstate or affirm his guilty plea. Accordingly, the court again gave the defendant the Rule 402 admonishments: advised him of the possible consequences of his plea; stated the maximum and minimum sentences available, expressly informing the defendant in this regard that, as a result of his prior burglary conviction, he was not eligible for probation under the Act and, further, that the least sentence he could expect to receive was a three-year term; and that a sufficient factual basis existed for the burglary charge. The defendant persisted in his plea of guilty, after acknowledging that the minimum sentence that could be imposed upon him was three years imprisonment. The court granted the defendant leave to withdraw his previously filed motion to withdraw his plea, again accepted the defendant’s guilty plea, entered a judgment of conviction against him, and ordered an updated presentence report.

On August 7, 1980, the defendant requested leave to resubmit his previous motion to withdraw his plea of guilty, and the court granted the request. At that point, defense counsel stated that he had nothing further to say regarding the motion to withdraw his client’s plea. The State remarked that the court had previously informed the defendant that it could not admit him to probation due to his prior Class 2 felony conviction and, consequently, that the defendant was not eligible for drug abuse treatment under the Act, and also that the defendant had persisted in his plea despite his awareness of the above. The court and counsel for both parties then discussed the effect of the recent case of People v. Teschner (1980), 81 Ill. 2d 187, 407 N.E.2d 49, which was handed down during the course of proceedings below. The trial court recognized that People v. Teschner held that a defendant is not precluded from being placed in a drug rehabilitation program pursuant to the Act, even though he is incapable of being admitted to probation under section 5— 5 — 3(c)(2)(G) of the Code upon his conviction of a Class 2 felony or greater, where he had been convicted of a Class 2 felony or greater within the previous 10 years. The court below reasoned that even though it had earlier determined, without the benefit of Teschner and contrary to the supreme court’s pronouncement therein, that the defendant could not be admitted to a drug rehabilitation program under the Act due to his prior Class 2 felony conviction, the court felt that the defendant here was nevertheless precluded from electing treatment under the Act in spite of Teschner, because the court had previously determined that the defendant was not an addict and hence was not eligible for treatment as such under the Act. Accordingly, the court denied the defendant’s motion to withdraw his guilty plea and on August 7,1980, sentenced him to a three-year prison term on the burglary charge, the minimum term of imprisonment that could be imposed.

On August 29,1980, the defendant filed a motion for modification of his sentence. At a hearing on October 24, 1980, defendant presented the testimony of Anthony Oliveri, a diagnostic specialist for T.A.S.C. Oliver! testified that he took six urine specimens from the defendant over a two-week period in October 1980, which procedure revealed positive results for morphine and codeine. The defendant came to the T.A.S.C. office at prescheduled times and provided the urine samples on those dates. The State stipulated that the urine specimens showed the presence of codeine and morphine substances. Prior to receiving the results of the urinalysis tests and from his own observation of the defendant and his own experiences as a drug counselor and former drug user, Oliveri concluded that the defendant exhibited no visible signs of drug addiction. However, Oliveri stated that the physical manifestations he would look for are those present when one is experiencing withdrawal. The court was not persuaded that the results of the urine tests alone were sufficient evidence of addiction to cause it to modify or change its previous ruling that the defendant was not a drug addict. In reaching this result, the court stated that the defendant would have “a strong motivation to take some steps to make such a positive showing” in the urine samples. Consequently, the court denied the motion for modification of the sentence.

The defendant first contends on appeal that the court abused its discretion in refusing to grant his motion to withdraw his guilty plea, which plea, he asserts, was based on a misapprehension of law. In this regard, the defendant maintains that he entered his plea of guilty upon the advice of counsel that his prior Class 2 felony conviction of burglary would not preclude him from electing treatment under the Act if he were otherwise determined to be eligible for treatment as a drug addict and that he would not have entered his plea if he had been aware that the court would be precluded from exercising its discretion to treat him as a drug addict on the sole basis that he had a prior Class 2 felony conviction.

The general rule is that it is within the sound discretion of the trial court to determine whether a plea of guilty, once entered, may be withdrawn. (People v. Hale (1980), 82 Ill. 2d 172, 411 N.E.2d 867.) The court’s determination in the exercise of its discretion will not be disturbed unless the facts demonstrate that the plea of guilty was entered under a misapprehension of law or fact, that the defendant has a defense worthy of consideration, or that there is a doubt of the guilt of the accused and the ends of justice would better be served by a trial. (People v. Spicer (1970), 47 Ill. 2d 114, 116, 264 N.E.2d 181; People v. Worley (1966), 35 Ill. 2d 574, 576, 221 N.E.2d 267, cert. denied (1967), 386 U.S. 972, 18 L. Ed. 2d 130, 87 S. Ct. 1163.) The withdrawal of the guilty plea should be allowed where it appears the plea was entered as a consequence of a misrepresentation by counsel, the State’s Attorney, or someone else in authority. People v. McKirdie (1970), 45 Ill. 2d 300, 302, 259 N.E.2d 16, cert. denied (1971), 400 U.S. 1010, 27 L. Ed. 2d 624, 91 S. Ct. 571, citing People v. Morreale (1952), 412 Ill. 528, 531, 107 N.E.2d 721; People v. Ryan (1979), 74 Ill. App. 3d 886, 890, 392 N.E.2d 1380.

It is necessary first to discuss the interplay between sections 9 and 10 of the Act (Ill. Rev. Stat. 1977, ch. 911/2, par. 120.9, 120.10) and section 5 — 5—3(c)(2)(G) of the Code (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005 — 5—3(c) (2) (G)) in light of both People v. Teschner (1980), 81 Ill. 2d 187,407 N.E.2d 49, and Public Act 81-851. In brief, if a person is charged with a crime but not convicted, he may elect treatment under the Act, if eligible for such treatment, instead of prosecution under the Code of Criminal Procedure of 1963. If he has been convicted, he may elect treatment and probation under the Act in lieu of a sentence under the Unified Code of Corrections. Section 9 of the Act sets forth the procedure if the person has been charged with a crime but not convicted, whereas section 10 articulates the procedure which applies where the person electing treatment has been convicted. (People v. Teschner (1980), 81 Ill. 2d 187, 191-92.) The precise question presented in Teschner was whether a defendant who had been convicted of a prior Class 2 felony within 10 years of the date on which he committed the present Class 2 felony was precluded from being placed in a drug rehabilitation program under section 10 of the Act upon conviction of the second Class 2 felony. Our supreme court in Teschner determined that, notwithstanding an accused’s ineligibility for probation or conditional discharge under section 5 — 5— 3(c)(2)(G), a defendant could still be eligible for treatment as a drug addict under the Act if he met the threshold requirements set forth in section 8 of the Act (Ill. Rev. Stat. 1977, ch. 91/2, par. 120.8). The court concluded that the provisions of the Code should not be superimposed upon the provisions of the Act so as to prohibit a disposition of probation authorized under that Act. 81 Ill. 2d 187, 193, 407 N.E.2d 49; People v. Andrews (1981), 95 Ill. App. 3d 595, 600, 420 N.E.2d 509.

Public Act 81-851, effective September 20, 1979, amended sections 9 and 10 of the Act to provide that alternative treatment for drug abuse under those sections must be consistent with section 5 — 6—1(a) of the Code (Ill. Rev. Stat. 1979, ch. 38, par. 1005—6—1(a)). The 1977 version of the Act contained no express reference to section 5 — 6—1(a). Section 5 — 6—1(a) of the Code, in turn, provides for a sentence of probation or conditional discharge “[ejxcept where specifically prohibited by other provisions of this Code.” One such provision is section 5 — 5—3(c)(2)(G), which states that a period of probation or a term of conditional discharge shall not be imposed for a Class 2 felony if the accused has been convicted of a Class 2 or greater felony within 10 years of committing the present offense. Thus, it is apparent that the probation and conditional discharge eligibility requirements of the Code have now been superimposed upon sections 9 and 10 of the Act by the legislature. See People v. Andrews (1981), 95 Ill. App. 3d 595, 420 N.E.2d 509.

Returning to the defendant’s contention that the court improperly denied his motion to withdraw his guilty plea, he does not contend, and the record expressly negates, that his counsel or the State’s Attorney promised him that he would be eligible for treatment as an addict under the Act. The defendant’s motion to withdraw and his attached affidavit reveal only that his counsel informed him that his prior Class 2 felony conviction of burglary would not preclude the court from placing him in a drug rehabilitation program if he otherwise qualified and the court exercised its discretion to place him in such a treatment program. It is apparent that the defendant was not laboring under either a misapprehension of law or a misrepresentation by counsel when he entered his guilty plea, for, as the Teschner case indicates, section 5 — 5—3(c)(2)(G) was not to be superimposed upon the provisions of the Act in existence prior to September 20, 1979. Thus counsel accurately represented to his client the law as it existed at the time the original guilty plea was entered on July 12 and 13, 1979. Furthermore, although the trial court originally based its determination to deny the defendant admittance to the treatment afforded under the Act on the ground that section 5 — 5—3(c) (2) (G) precluded him from being eligible for probation and hence he was ineligible for treatment under section 10, the court also stated on August 7, 1980, that it was aware that it had misinterpreted the above statutory provisions in light of Teschner and, further, that it was resting its ultimate decision to deny the defendant’s petition for treatment as a drug addict on the basis that he was not, in fact, an addict.

We note, in addition, that when the defendant, reaffirmed his guilty plea on March 27, 1980, he and his counsel were well aware that the trial court had stated that the accused was not eligible for treatment under the Act due to his prior Class 2 felony conviction and found that he was not an addict. Yet the defendant persisted in his plea. While it is apparent that once Public Act 81-851 became effective, the defendant was no longer eligible for treatment under section 10 of the Act given his prior Class 2 felony conviction and that this result is contrary to the representation that counsel made to the defendant prior to the entry of his original guilty plea, it must be noted that the defendant could still elect the law under which he preferred to be sentenced. (People v. Hollins (1972), 51 Ill. 2d 68, 280 N.E.2d 710.) Thus, there is still no misapprehension of law or misrepresentation by counsel because the defendant could have elected to be sentenced under the law as construed under Teschner, which would allow him to elect treatment under the Act notwithstanding his prior conviction, if the court had determined that he was an addict.

Thus, we conclude, that defendant did not reaffirm his plea of guilty because of the court’s mistake as to the applicable law but, rather, he persisted in pleading guilty in spite of the court’s statement that he was not eligible for treatment under the Act. An even more compelling reason for rejecting defendant’s claim is that the defendant, in reaffirming his plea of guilty on March 27, 1980, was aware that the trial court had also specifically found that there was insufficient evidence to establish his addiction. Thus, when he reaffirmed his plea of guilty, he did so with the knowledge that the court had determined he was not an addict, and any mistake of law became immaterial in view of this finding.

The defendant also asserts that he was entitled to a hearing on his motion to withdraw his guilty plea. However, when the defendant asked the court for leave to resubmit his motion on August 7, 1980, defense counsel stated at that time that he had nothing further to say regarding the motion to withdraw his client’s plea and that he just wanted the court to consider it. In light of this waiver, the defendant cannot now complain that he was not afforded an evidentiary hearing. Furthermore, it does not appear that the factual allegations contained in the motion and accompanying affidavit demonstrated a need for an evidentiary hearing. Accordingly, we find that the trial court did not abuse its discretion when it denied defendant’s motion to withdraw his plea of guilty.

The defendant’s second contention is that the trial court failed to exercise any discretion or abused its discretion in concluding that he was not a drug addict and hence was not eligible for treatment under the Act. When sufficient facts are brought to the attention of the court which show that there is reason to believe that the defendant is an addict, or the defendant has stated he is an addict, the court must first exercise its discretion and consider alternative treatment under the Act. (People v. Andrews (1981), 95 Ill. App. 3d 595, 599, 420 N.E.2d 509; People v. Miller (1976), 43 Ill. App. 3d 290, 292, 356 N.E.2d 1345; People v. Melson (1976), 36 Ill. App. 3d 71, 73, 343 N.E.2d 258.) Thus, where the record does not reflect that the court ever considered whether the defendant was an addict or the appropriateness of allowing the accused to choose treatment under the Act, the cause will be remanded for a new sentencing hearing. People v. Andrews (1981), 95 Ill. App. 3d 595, 600; People v. Melson (1976), 36 Ill. App. 3d 71, 74.

It is clear in the present case that the trial court exercised its discretion and considered treatment under the Act instead of imprisonment. While initially the court believed defendant ineligible for treatment under the Act, it did allow an offer of proof by defendant of his addiction and did consider that evidence when it ultimately determined that People v. Teschner held that ineligibility under section 5 — 5—3(c)(2)(G) of the Uniform Code of Corrections did not bar his eligibility for treatment as an addict under the Act. The record reflects that the court considered the testimony presented by the defendant which attempted to establish that he was a drug addict in need of treatment. Furthermore, the court expressly stated on the record that it was denying the defendant’s petition for treatment under the Act for the reason that the defendant had not demonstrated, to the satisfaction of the court, that he was a drug addict, a finding which precludes the defendant from eligibility under the Act. Thus, this statement itself is sufficient evidence that the court exercised its discretion.

With respect to the second question, whether the trial court abused its discretion or acted arbitrarily in determining that the defendant was not entitled to treatment under the Act, we conclude that the court acted within its sound discretion.

Section 3.03 of the Act defines an addict as “any person who habitually uses any drug, chemical, substance or dangerous drug other than alcohol so as to endanger the public morals, health, safety or welfare or who is so far addicted to the use of a dangerous drug or controlled substance other than alcohol as to have lost the power of self control with reference to his addiction.” (Ill. Rev. Stat. 1979, ch. 911/2, par. 120.3— 3.) The question whether a defendant has presented sufficient evidence to the court to establish that he is an “addict” within the meaning of the statutory definition must be resolved on the basis of the facts presented in each particular case. (See People v. Miller (1976), 43 Ill. App. 3d 290, 292, 356 N.E.2d 1345.) The grant or denial of treatment under the Act is controlled by the sound discretion of the trial court. (People v. Warren (1977), 69 Ill. 2d 620, 625, 373 N.E.2d 10; People v. Morguez (1980), 90 Ill. App. 3d 471, 478, 413 N.E.2d 128.) A reviewing court must defer to the trial court’s superior ability to weigh credibility and evaluate the record made at the hearing in aggravation and mitigation unless the trial court’s determination is clearly erroneous. People v. Fox (1979), 69 Ill. App. 3d 11, 13, 386 N.E.2d 1138.

Defendant cites several cases in support of his contention that the court either failed to exercise its discretion or abused that discretion. Defendant’s reliance on People v. Dill (1974), 23 Ill. App. 3d 503, 319 N.E.2d 240, and People v. Robinson (1973), 12 Ill. App. 3d 291, 297 N.E.2d 621, is misplaced, since both of those cases were reversed and remanded as the trial court had reason to believe the defendant was an addict and failed to exercise its discretion initially to implement the provisions of the Act. As stated above, the trial court in the instant case specifically found the defendant not to be an addict after a hearing. In People v. Clinkscale (1973), 14 Ill. App. 3d 226, 302 N.E.2d 181, another case relied upon by the defendant, the trial court’s decision to refuse probation and sentence defendant to the penitentiary was reversed and remanded for failure to consider the alternative treatment under the Act. It appears that in Clinkscale the trial judge felt defendant was requesting another term of probation rather than treatment under the. Act. Thus, that case factually is inapposite to the situation at bar. In the present case, although the defendant’s testimony indicates that he used drugs in the past and was currently taking codeine on a daily basis and valium occasionally, neither of the drug counselors from T.A.S.C. who testified on behalf of the defendant positively stated that, in their opinion, the defendant was a drug addict. Rather, they both remarked that the defendant did not exhibit physical signs of drug addiction during their conversations or interviews with him. The defendant’s probation officer, however, testified that on one occasion the defendant appeared to be under the influence of a drug. The defendant himself stated that he had been gainfully employed on a continuous basis for the past 4M years, that he is not currently under a doctor’s care for any type of physical disorder, and that he was not discharged from the military in 1978 for drug-related reasons. The updated presentence report of May 8,1980, relates that the defendant stated he no longer was taking valium, that he had decreased his use of codeine, that he was weaning himself from the drug, and that he felt “a lot sharper now.” In addition, this report contains the defendant’s assertion that he committed the burglary in question because he was under the influence of a “drug related craz [sic] disease” that grew beyond his control and compelled him “to act abnormally undisciplined,” while the original presentence report of October 26, 1979, states that the defendant committed the burglary because he was drugged and felt no self-discipline.

Based on the record in this case, we cannot say that the court abused its discretion in determining that the defendant was not an addict within the meaning of section 3.03 of the Act. Even if the court below were satisfied that the defendant is an habitual user of dangerous drugs, the trial court nevertheless could have reasonably concluded, based on the same evidence, that his drug use did not pose a danger to the public health, safety, morals, or welfare and that he had not lost the power of self-control over his habit. The defendant testified only that he “supposed” he was an addict, although his petition to be treated as an addict does allege that he was a drug addict. His failure to testify affirmatively that he was an addict is a factor which also weighs in favor of the propriety of the trial court’s factual determination in the present case. (See People v. Knowles (1977), 48 Ill. App. 3d 296, 300, 362 N.E.2d 1087.) The results of the urinalysis tests introduced at the hearing on the motion for modification of sentence was not a sufficient basis for the court to reject its earlier conclusion that the defendant was not an addict. The court was of the view that the defendant had a strong motivation to take certain drugs close to the time he gave the urine samples in an effort to present evidence of his addiction to the substances. We conclude that the trial court did not abuse its discretion when it determined that the defendant was not an addict. While it appears to be a close question, the trial court is in a superior position to weigh credibility and evaluate the evidence.

The defendant’s third assignment of error is that the trial court erroneously concluded on March 27, 1980, that he was ineligible for treatment under either section 9 or 10 of the Act and that, even if the trial court was correct, he was entitled to elect to choose to proceed under either the law as construed by the court in Teschner or under the law as revised by Public Act 81-851.

This issue, however, is resolved on another basis. The court’s finding that the defendant was not a drug addict precludes his eligibility for treatment under the Act. (See People v. Morguez (1980), 90 Ill. App. 3d 471, 479, 413 N.E.2d 128.) As stated previously, the trial court ultimately based its decision to sentence the defendant to a term of imprisonment, rather than affording him treatment under the Act, on the fact that he was not a drug addict and not on the basis that he was precluded from such treatment due to his prior Class 2 felony conviction.

The trial court stated on August 7, 1980, that it had earlier misinterpreted the interplay of section 5 — 5—3(c)(2)(G) of the Code and sections 9 and 10 of the Act in light of the supreme court’s decision in Teschner. However, it is apparent that on March 27,1980, when the court concluded, contrary to Teschner, that the defendant was not entitled to elect treatment under the Act due to his prior Class 2 felony conviction, the court was accurately stating the law as it then applied to the defendant because Public Act 81-851, effective September 20, 1979, changed the result reached in Teschner. While the above amendment was subsequent to the date of sentencing in Teschner and hence inapplicable there (81 Ill. 2d 187, 194, 407 N.E.2d 49), here it occurred after the defendant had filed his petition for treatment as a drug addict but before he was sentenced on August 7, 1980. Thus sections 9 and 10 of the Act, as amended by Public Act 81-851, are applicable to this defendant. However, the defendant correctly points out that he may elect to be sentenced under either the law in effect at the time the offense was committed or the law in effect at the time of sentencing. (People v. Hollins (1972), 51 Ill. 2d 68, 280 N.E.2d 710.) Thus, the defendant was entitled to elect between the law as construed and applied in Teschner or the law as amended by Public Act 81-851. (People v. Andrews (1981), 95 Ill. App. 3d 595, 600, 420 N.E.2d 509.) Nevertheless, the entitlement to make this election in the present case does not change the result reached below, for, under either law, the defendant was not eligible for treatment as an addict due to the trial court’s finding that he was not a drug addict.

The defendant finally asserts that the court erred in sentencing him to the minimum term of three years imprisonment rather than probation because the court based its sentencing determination on the fact that he had been convicted of a prior Class 2 felony (burglary) without requiring the State to allege and prove the prior conviction. In this regard, he relies on People v. Ostrand (1966), 35 Ill. 2d 520, 221 N.E.2d 499, overruled in part on other grounds by People v. Bracey (1972), 51 Ill. 2d 514, 283 N.E.2d 685; People v. Breitweiser (1976), 44 Ill. App. 3d 284, 357 N.E.2d 890, and People v. Hayes (1973), 15 Ill. App. 3d 851, 305 N.E.2d 283.) Those cases hold, in effect, that, under enhanced penalty statutes which elevate the charge from one crime to another or raise the penalty range to be applied to a second offense, the State must plead and prove a prior conviction at trial because the prior conviction is actually an element of the crime charged. (See People v. April (1979), 73 Ill. App. 3d 555, 392 N.E.2d 400.) These cases are clearly distinguishable, however, from the present situation, for section 5 — 5—3(c)(2)(G) (now section 5 — 5— 3(c)(2)(F)) does not change the class of the offense or raise the penalty range. Rather, here the court must impose at least the minimum sentence set forth in the Code for the subsequent offense of burglary (three years) and is precluded from sentencing the repeat offender to a period of probation. Also, it is obvious that the prior Class 2 felony conviction does not constitute an element of the crime presently charged but, rather, is considered in relation to sentencing only. (See People v. Grier (1980), 90 Ill. App. 3d 840, 855, 413 N.E.2d 1316; People v. Harris (1980), 83 Ill. App. 3d 1123, 1127, 1129, 404 N.E.2d 1020.) More analogous are those decisions holding that, because the aggravating factors to be considered in imposing an extended term are not necessary elements of any crime and relate only to sentencing, no pleading or proof of a prior conviction is necessary at trial. People v. Grier; People v. Harris; People v. Butler (1979), 78 Ill. App. 3d 809, 812-14, 396 N.E.2d 1374.

It is a settled rule of law that the legislature has the authority to set the nature and extent of penalties. Courts will not interfere with such legislation unless the challenged penalty is clearly in excess of the very broad and general constitutional limitations applicable. (People ex rel. Carey v. Bentivenga (1981), 83 Ill. 2d 537, 542, 416 N.E.2d 259.) Statutes prohibiting probation for a previously convicted offender have been held to be constitutional. (People ex rel. Carey v. Bentivenga; People ex rel. Hanrahan v. Wilson (1971), 48 Ill. 2d 30, 268 N.E.2d 23.) We conclude that this defendant was properly charged and sentenced.

For the reasons set forth above, the judgment of the trial court is affirmed.

Affirmed.

NASH and LINDBERG, JJ., concur.

       While the record furnished us reveals only the dismissal of count II, it appears the intent was to dismiss all remaining counts.

       Section 5 — 5—3 was amended during the course of the proceedings below; prior subsection (c)(2)(G) is now found in section 5 — 5—3(c)(2)(F) of the present Code (111. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3(c)(2)(F)).


author: PRESIDING JUSTICE SEIDENFELD

text:
    TRUCK INSURANCE EXCHANGE, Plaintiff-Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, Defendant-Appellee and Third-Party Plaintiff.—(BROWN TRUCK LEASING CORPORATION, Third-Party Defendant.)
    Second District
    No. 81-183
    Opinion filed November 24, 1981.
    Robert J. Shaw, of Rockford, for appellant.
    Richard R. Haldeman, of Williams, McCarthy, Kinley, Rudy and Picha, of Rockford, for appellee.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

Truck Insurance Exchange (Truck Ins.) sought a declaratory judgment that Liberty Mutual Insurance Company (Liberty Mutual) was the provider of the primary insurance on a truck leased by Brown Truck Leasing Corporation (Brown) which was involved in an accident. Summary judgment was entered for Liberty Mutual on the theory that Truck Ins. provided primary coverage and Liberty Mutual’s liability as an insurer of the lessee of the rented truck (Viking Pump) was excess coverage. Truck Ins. appeals, contending that the language of the respective policies requires a pro rata allocation of risk by the concurrent insurers; but, that in any event, material questions of fact make summary judgment inappropriate.

Brown entered into a written agreement to lease a truck to Viking Pump. Included was the lease provision in article VI, “Brown shall furnish liability insurance with $500,000 combined single limits.” The insurance obligations in the lease agreement between Brown and Viking also provided:

“Brown shall not be required to provide any insurance coverage other than that specified 0 ” ” or in excess of the limits above set out and Customer agrees to indemnify and save Brown harmless from any and all claims for injuries or damages to the operation of the vehicle leased hereunder in excess of the limits * 4 'as set out above.”

Pursuant to the lease, Brown maintained a Truckmen’s Comprehensive Policy with Truck Ins. which was in full force and effect at the time of the accident involving the leased truck. Under its standard form policy, in part I, Truck Ins. agreed to pay on behalf of the insured all sums which the insured should become legally obligated to pay because of bodily injury. A condition under the heading of “other insurance” provided:

“The insurance afforded by Part I shall not apply to any loss covered by any other insurance but shall be excess insurance over such other insurance.”

By later endorsements, stated to supersede and control anything in the policy contrary to the endorsement, it was agreed that the insurance “shall apply to any lessee of a leased automobile while such automobile is in the custody of a lessee under a contract of lease which requires the lessor to provide the liability and physical damage thereon” (No. 11); and it was agreed that the coverage afforded to lessee is extended to drivers of a leased vehicle “if such is provided for in the least contract” (No. 6).

At the time of the accident, Houdaille Industries, the parent corporation of Viking Pump, carried a policy with Liberty Mutual, the insurer agreeing to pay on behalf of the insured all sums which the insured should become legally obligated to pay because of damages resulting from an accident involving either an automobile owned by the named insured or an automobile not owned but which was being used under contract. The policy contained the additional condition with respect to hired or nonowned automobiles, “this insurance shall be excess insurance over any other valid and collectible insurance available to the insured.”

The trial court found that the lease and the accompanying endorsements to the policy were plain in meaning, that when read together they controlled any inconsistent provisions in the policies, and that no extrinsic evidence offered by Truck Ins. could vary the terms of the agreement. It therefore granted Liberty Mutual’s motion for summary judgment.

We agree with the conclusions of the trial court and therefore affirm.

Truck Ins.’ argument that the two insurers should share pro rata in the loss is essentially based on its premise that the policies cover the same loss with the same or similar disclaimers. It is true, as Truck Ins. argues, that if both policies contain similar excess clauses, the loss will be prorated between carriers. (See Continental Casualty Co. v. Travelers Insurance Co. (1967), 84 Ill. App. 2d 200, 206-07.) Howéver, we cannot agree with Truck Ins. that in construing policy language we should not consider the provisions of the lease between Brown and Viking Pump to which Truck Ins. was not a party. By its endorsements Truck Ins. acknowledged that it was providing insurance pursuant to the lease. The respective policies, accompanying endorsements, and the lease so far as incorporated into the insurance contract, are construed together to determine the parties’ intention. Konrad v. Hartford Accident & Indemnity Co. (1956), 11 Ill. App. 2d 503, 526.

We consider Truck Ins.’ argument that its standard excess clause avoids primary coverage to the lessee when the latter obtains other primary insurance in view of Truck’s endorsements. By the terms of the endorsements Truck Ins. was prepared to look beyond its own standard form and to incorporate by reference the insurance obligation of the lease prepared by its named insured Brown. The parties to the lease, in turn, contemplated that Brown would procure combined single limit primary public liability insurance in the sum of $500,000. In addition, Viking Pump in article 6A of the lease agrees to indemnify and save Brown harmless from any claims for injuries in excess of $500,000. Such language would have been meaningless unless Brown intended to procure the first $500,000 in coverage. Moreover, the endorsements by their terms do not recite that the coverage provided therein is excess to any other valid and collectible insurance available to the lessee. As the trial court concluded, the intention is clearly shown to be that Truck Ins. provided primary insurance to the extent of the obligation under its policy and accompanying endorsements. Equally clear is that the endorsements through which Truck Ins. furnished primary coverage superseded a standard form excess clause that by its terms denied all liability until the stated limits of other insurance are exhausted.

The Liberty Mutual policy contained a provision which made its coverage excess with its insured on “hired” or “non-owned” automobiles where the insured obtained other primary insurance. Truck Ins. provided that insurance by later endorsements which formed part of its policy. As Truck Ins.’ coverage is greater than the loss, Liberty Mutual’s policy is excess and does not provide any collectible insurance. Farmers Automobile Insurance Association v. Iowa Mutual Insurance Co. (1966), 77 Ill. App. 2d 172, 176-77; Jensen v. New Amsterdam Insurance Co. (1965), 65 Ill. App. 2d 407, 416.

Because Truck Ins.’ status as a primary insurer relieves Liberty Mutual of any liability on a third-party claim not in excess of the Truck Ins. policy, the trial court properly concluded that, as a matter of law, Liberty Mutual’s right to summary judgment was clear and free from doubt. (Ill. Rev. Stat. 1979, ch. 110, par. 57(3).) Truck Ins.’ argument in this regard that questions of material fact remained as to the intent of the parties is not persuasive. It notes that it offered to prove by expert evidence that the custom and usage of the trade would result in the conclusion that while Brown Truck was to provide primary coverage, it was also the custom that the lessees obtain their own primary coverage, and that it was a factual question whether the parties to the lease agreement must have intended that all other coverage must be secondary. It was only after the trial judge had ruled against Truck Ins. that its counsel raised the question of custom and usage. However, no affidavits were filed in support of its assertion that the custom and usage in the truck leasing trade modify the express terms of the lease agreement. In addition, the depositions filed as a part of the record confirm that the intention of the parties was consistent with the clear terms of the lease agreement; and that if a lessee had agreed to provide its own insurance the lease would be modified to state that fact, which was not done. Essentially, however, the attempted offer of proof became irrelevant when the agreements, properly construed, showed the true intention of the parties as a matter of law.

The judgment is therefore affirmed.

Affirmed.

UNVERZAGT and VAN DEUSEN, JJ., concur.


author: JUSTICE NASH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY C. THIEL, Defendant-Appellant.
    Second District
    No. 80-568
    Opinion filed December 2, 1981.
    Mary Robinson, of State Appellate Defender’s Office, of Elgin, and John Reid and Brian D. Lewis, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Charles Hartman, State’s Attorney, of Freeport (Phyllis J. Perko and Gene Armentrout, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE NASH

delivered the opinion of the court:

Defendant, Larry C. Thiel, was convicted following trial by jury of two counts of burglary and four counts of misdemeanor theft and was thereafter sentenced to extended terms of 10 years’ imprisonment on the felony charges and to six months’ imprisonment for each misdemeanor, with all sentences to run concurrently. He appeals, contending the State did not prove his guilt beyond a reasonable doubt and that the trial court erred in admitting in evidence certain rebuttal testimony. The State contends review of these issues has been waived by defendant’s failure to file a post-trial motion. We affirm.

Defendant was charged with the burglary of two apartment buildings occurring on October 9, 1979, and with the theft therefrom of personal property owned by tenants. At trial, defendant’s former girlfriend, Dawn Hoover, who had lived with him during October 1979, testified that on the evening in question she accompanied defendant to the apartment buildings and saw him remove the property in question. Miss Hoover stated the stolen property was kept in their apartment until she left defendant to live with her mother, at which time most of it was moved to her mother’s home. This witness was impeached by evidence of a prior conviction for burglary. She was also charged in connection with the same burglaries and thefts as defendant but testified that she had not been promised leniency in exchange for her testimony against him. She also stated her association with defendant had ceased after he had begun dating another girl. An antique dealer testified defendant had sold a lamp to him, identified as part of the stolen property, giving him a check for $35 which defendant subsequently cashed. The owners of the stolen property testified it had been removed from their apartments without their consent.

Defendant also testified and denied he committed these offenses and stated the property in question had been purchased by his former girlfriend or been given to her by her grandmother. Defendant also offered evidence through his brother that Miss Hoover had told him that her grandmother had purchased the items identified at trial as having been stolen. Another defense witness testified Miss Hoover had informed her that defendant had not committed the burglaries but was “going to go down for the rap anyway, by himself”. Miss Hoover denied making these statements. Holly Love, called in rebuttal by the State, testified that defendant had told her that he had committed some burglaries during the first part of October, but he did not say where they had occurred. This testimony was admitted in evidence over defendant’s objection that the State had failed to lay a proper foundation.

Defendant failed to make the written motion for new trial specifying the grounds therefor required after jury trial by section 116 — 1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 116—1). The general rule is that failure to specifically raise a claim of error in a post-trial motion constitutes a waiver precluding consideration of such issues on review. People v. Jackson (1981), 84 Ill. 2d 350, 358-59, 418 N.E.2d 739, 743; People v. Tannenbaum (1980), 82 Ill. 2d 177, 181, 415 N.E.2d 1027, 1029; People v. Carlson (1980), 79 Ill. 2d 564, 576, 404 N.E.2d 233, 238; People v. Foster (1979), 76 Ill. 2d 365, 380, 392 N.E.2d 6, 12; People v. Precup (1978), 73 Ill. 2d 7, 16, 382 N.E.2d 227, 231; see also Wilson v. Clark (1981), 84 Ill. 2d 186, 189, 417 N.E.2d 1322, 1324; Brown v. Decatur Memorial Hospital (1980), 83 Ill. 2d 344, 348-49, 415 N.E.2d 337, 339.

When a claim of error has not been so preserved it will only be considered by a reviewing court under the plain error doctrine set forth in Supreme Court Rule 615(a) (Ill. Rev. Stat. 1979, ch. 110A, par. 615(a)), which provides as an exception that:

“Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.”

This exception, however, “does not mandate that a reviewing court consider all errors involving substantial rights.” (People v. Precup (1978), 73 Ill. 2d 7, 16, 382 N.E.2d 227, 231.) Nor does it “operate in the nature of a general saving clause preserving for review all errors affecting substantial rights .” People v. Roberts (1979), 75 Ill. 2d 1, 16, 387 N.E.2d 331, 338.

In the development of the waiver rule in the many recent cases in which our supreme court has considered its application, the court has not directly addressed whether the rule will apply to the issue of whether a defendant was proved guilty beyond a reasonable doubt. Earlier cases, notably People v. Walker (1955), 7 Ill. 2d 158, 130 N.E.2d 182, held that a failure of proof was so fatal to a judgment of conviction that it could be raised for the first time on appeal. This court considered Walker controlling in People v. Flowers (1977), 52 Ill. App. 3d 301, 367 N.E.2d 453, as have other reviewing courts. (E.g., People v. Harrawood (1978), 66 Ill. App. 3d 163, 383 N.E.2d 707, appeal denied (1979), 74 Ill. 2d 588.) Other courts distinguish Walker, however, as simply an example of an application of the plain error exception to the waiver rule rather than as outside its scope. See, e.g., People v. Starnes (1980), 88 Ill. App. 3d 1141, 411 N.E.2d 125; People v. Richardson (1977), 49 Ill. App. 3d 170, 363 N.E.2d 924; People v. Hammond (1977), 48 Ill. App. 3d 707, 362 N.E.2d 1361; People v. Smith (1977), 45 Ill. App. 3d 66, 359 N.E.2d 228, aff'd (1978), 71 Ill. 2d 95, 374 N.E.2d 472.

In light of recent pronouncements of our supreme court directed to the question of waiver of error, and the procedural considerations making such a rule necessary, we consider that the issue of whether the State has failed to prove the essential elements of its case is also subject to the waiver rule unless first presented to the trial court by a post-trial motion. We will address the claims of error raised by defendant for the first time on appeal to the extent necessary to determine whether they require full consideration as a plain error exception to that rule.

The “reasonable doubt” issue raised by defendant arises from the conflicting evidence which was presented to the jury for resolution. Defendant notes minor inconsistencies in the testimony of Dawn Hoover, her personal bias against him and that she testified as an accomplice as factors affecting her credibility as a witness. Her testimony was, however, corroborated, in part, by other witnesses and by admissions attributed to defendant.

It is the function of the jury to determine credibility of the witnesses, the weight to be given their testimony and the inferences to be drawn therefrom (People v. Wilson (1977), 66 Ill. 2d 346, 349, 362 N.E.2d 291, 292; People v. Akis (1976), 63 Ill. 2d 296, 298, 347 N.E.2d 733, 734.) A conflict in the testimony does not, by itself, create a reasonable doubt of guilt (People v. Gonzales (1978), 60 Ill. App. 3d 980, 990, 377 N.E.2d 91, 99), and accomplice testimony may, if believed by the jury, be sufficient to sustain a conviction. (People v. Wilson (1977), 66 Ill. 2d 346, 349, 362 N.E.2d 291, 292; People v. Hansen (1963), 28 Ill. 2d 322, 332, 192 N.E.2d 359, 365, cert. denied (1964), 376 U.S. 910, 11 L. Ed. 2d 608, 84 S. Ct. 665.) We conclude there is no basis presented upon which defendant may avoid the waiver rule as to the issue of reasonable doubt, and we will not consider it further.

Defendant also contends the trial court erred in admitting certain rebuttal testimony relating to his admissions without proper foundation. We find the ruling of the court was correct and no error occurred. See People v. Bell (1975), 27 Ill. App. 3d 171, 326 N.E.2d 507; see also Buck v. Maddock (1897), 167 Ill. 219, 47 N.E. 208; Security Savings & Loan Association v. Commissioner of Savings & Loan Associations (1979), 77 Ill. App. 3d 606, 396 N.E.2d 320.

For the foregoing reasons the judgment of the circuit court of Stephenson County will be affirmed.

Affirmed.

HOPF and LINDBERG, JJ., concur.


author: JUSTICE VAN DEUSEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID BAUER et al., Defendants-Appellants.
    Second District
    Nos. 80-717, 80-888 cons.
    Opinion filed December 2, 1981.

      Frank P. Vella, Jr., P. C., of Rockford, and Randolph G. Cook, of Cook Law Offices, of Loves Park, for appellants.
    Daniel D. Doyle, State’s Attorney, of Rockford (Phyllis J. Perko and Marshall Stevens, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

Defendants David Bauer and Brenda Merryman bring this consolidated appeal from their convictions for violation of section 4(e) of the Cannabis Control Act (Ill. Rev. Stat. 1979, ch. 561/2, par. 704(e)).

On November 1, 1979, Winnebago County Deputy Sheriff Richard McMann obtained a warrant to search a premises located at 1024 Oakley Avenue, in Winnebago County, Illinois. Deputy McMann executed a search of the premises located at 1024 Oakley Avenue, Rockford, in Winnebago County, Illinois, and seized numerous items, including items which the State later introduced into evidence at the defendants’ trials.

Prior to the trials, the defendants filed a motion to suppress evidence seized during the search on the basis that the search warrant was improperly issued. The motion was denied by the trial court. On July 15, 1980, the defendants were convicted of violating the Cannabis Control Act. In their motion to suppress and on appeal, the defendants challenge the validity of the search warrant on the grounds that the warrant did not sufficiently describe the premises to be searched, and that the facts contained in the complaint and supporting affidavit were insufficient to establish probable cause to search the premises. We disagree.

The sworn complaint presented to the issuing judge requested a warrant to search for narcotics and controlled substances at a one-family dwelling which was gray with red trim and located at 1024 Oakley, Winnebago County, Illinois. Affixed to the complaint was Deputy McMann’s affidavit which stated:

“(1) That I am a sworn Officer of the Winnebago County Sheriff’s Police, and have worked as a narcotics investigator for the past 12 years.
(2) That within the past four (4) days, I was contacted by a reliable informant that has made narcotic buys or given information that has led to the arrest and conviction of over ten (10) persons for narcotic violations. Above informants [sic] information has always been correct.
(3) That the above informant advised me that he has been to alocation [sic] at 1024 Oakley Avenue on different occasions. The last time being within the past 4 days. The above informant states that on every occasion he has seen a person by the name of Dave, selling drugs and has seen quantity of drugs in this residence. (4) That the city directory for 1979 shows a David Bauer living at 1024 Oakley Avenue.
(5) That I talked to a concerned citizen whose reliability is unknown and he advised me that there is always alot of traffic coming and going to this residence, staying a short time and leaving. The concerned citizen saw a person put a plastic bag into his pocket while leaving.
(6) That 1024 Oakley Avenue is a one family dwelling, grey in color with red trim on top, located on the West side of Oakley. This location is within the State of Illinois, County of Winnebago, City of Rockford.”

The defendants first contend that the warrant and the complaint for the warrant are insufficient as a matter of law in that neither document indicates in what city, town or village 1024 Oakley Avenue is located. In support of this contention defendants note that sections 108 — 3 and 108 — 7 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, pars. 108 — 3 and 108 — 7) require that the complaint and warrant particularly describe the place to be searched. In People v. Fragoso (1979), 68 Ill. App. 3d 428, 432, the court discussed this requirement:

“The purpose of the requirement of particularity of description in search warrants is to prevent the use of general warrants, which would give the police broad discretion as to where they may search and what they may seize. [Citations.] Given this reason for the requirement, our courts have determined that a warrant is sufficiently descriptive of the premises to be searched if it enables the police, with reasonable effort, to identify the place intended. [Citations.]”

Under Fragoso, the defendants have the burden of establishing that, in view of all of the relevant facts, the lack of particularity in the description of the premises operated to cause ambiguity or confusion. (68 Ill. App. 3d 428, 433.) Errors in addresses and indeed omissions as to portions of addresses are not per se fatal to the validity of a warrant. (68 Ill. App. 3d 428, 432.) Additionally, reference to the affidavit attached to the warrant is permissible in determining the validity of the warrant. (68 Ill. App. 3d 428, 433.) While neither the complaint for the warrant, nor the warrant itself makes any reference to the city in which the subject premises is located, the affidavit recites that the 1024 Oakley Avenue residence is located in Rockford, Illinois.

In the complaint and in the warrant, the dwelling to be searched was located in Winnebago County, Illinois. Both documents stated that the dwelling was located at 1024 Oakley Avenue on the west side of the street, and that the structure was a one-family dwelling, grey in color with red trim. The sworn affidavit, which was attached to the complaint for the warrant and incorporated by reference thereto, gave an identical description of the premises to be searched, and located the dwelling in the City of Rockford. The defendants have not introduced any evidence to establish the existence of any one-family, gray with red trim dwelling located in Winnebago County other than the Rockford dwelling which was occupied by the defendant and was searched by Deputy McMann. Under these circumstances, we have determined that the absence of the designation of the city on the warrant itself was a technical deficiency which created no reasonable possibility of confusion and, therefore, it is not a proper basis for quashing the warrant.

The defendants next contend that the affidavit in support of the search warrant was insufficient to establish probable cause for the issuance of the warrant in that it failed to establish the informant’s reliability and credibility, and it failed to adequately establish the underlying circumstances from which the informant concluded that evidence of a crime could be found in the place to be searched.

The complaint and affidavit of a police officer made for the purpose of securing the issuance of a search warrant need not be made on personal knowledge only. (Jones v. United States (1960), 362 U.S. 257, 269, 4 L. Ed. 2d 697, 707, 80 S. Ct. 725, 735.) Here, the warrant is based on the hearsay statements of an informant and not on the personal observation of the officer seeking the warrant. If the affidavit in support of the warrant is based on hearsay, the affidavit must meet the two-prong test set out in Aguilar v. Texas (1964), 378 U.S. 108, 114, 12 L. Ed. 2d 723, 729, 84 S. Ct. 1509, 1514. The first part of this test is often referred to as the “basis of knowledge prong,” and the second part as the “veracity prong.” People v. Gates (1981), 85 Ill. 2d 376, 382-83.

We turn first to the question of whether the affidavit in support of the complaint satisfies the “veracity prong” by alleging sufficient facts to establish the reliability or credibility of the informant.

In paragraph (2) of the affidavit, the police officer states that “within the past four (4) days, I was contacted by a reliable informant that has made narcotic buys or given information that has led to the arrest and conviction of over ten (10) persons for narcotic violations. Above informants [sic] information has always been correct.” The defendants claim that this description was insufficient to apprise the magistrate of the reliability of the informant in that it did not provide specific information regarding: when the information had been provided to the police; to whom the information had been provided; the nature of the information; the cases in which the information has been used; or whether the information had ever been provided to the affiant officer, or other sheriff’s office personnel.

In People v. Thomas (1975), 62 Ill. 2d 375, 381, the Illinois Supreme Court stated that affidavits in support of search warrants are to be tested and interpreted in a common sense and realistic fashion rather than a hypertechnical one. The affidavit here describes how the informer’s previous information has proved accurate and reliable; namely, that he has supplied information on previous occasions, and that this information has been correct and has led to the arrest and conviction of over ten persons. Thus, there is sufficient factual basis to lend credence to the informant’s statement (see People v. Thomas (1975), 62 Ill. 2d 375, 381). As in Thomas, “the affidavit was not as precise, complete or detailed as it might have been, but the available time and the circumstances surrounding the preparation and execution of such affidavits are seldom compatible with deliberate reflection or exhaustive statements of detail. Their omission here does not, as urged by defendant, constitute a fatal defect.” 62 Ill. 2d 375, 381.

Next, we address the question of whether the affidavit in support of the warrant alleges sufficient facts to satisfy the “basis of knowledge” prong announced in Aguilar. The Illinois Supreme Court recently stated:

“[T]he ‘basis of knowledge’ part of the test announced in Aguilar, is concerned with the facts and circumstances showing that the informant knew that the person named has been or will be involved in criminal conduct. The most common means of satisfying this requirement is by the informant’s declaration that he is revealing personal knowledge gathered through some physical sensory faculty such as that of sight, smell or sound. [Citation.] Statements containing mere conclusions of criminal activity without a statement regarding independent facts and personal observations do not provide a sufficient basis for a neutral magistrate to decide to issue a search warrant.” (Emphasis added.) (People v. Gates (1981), 85 Ill. 2d 376, 383-84.)

In Gates, the search warrant was based upon information contained in an anonymous, handwritten letter received by the Bloomingdale Police Department. The letter alleged, in substance, that the defendants made their living by selling drugs; that one of the defendants drives their car to Florida, where it is loaded with drugs, and the other defendant drives it back; and that the defendants were planning to travel to Florida in a few days for the purpose of obtaining illegal drugs. The letter further stated that when the defendants drive the car back from Florida, the trunk will be loaded with over $100,000 in drugs; and that the defendants had $100,000 worth of drugs in their basement. The supreme court held that the affidavit did not meet the Aguilar test, in that the affidavit did not contain any statements showing that the information was acquired through first-hand or personal knowledge of the informant.

Unlike Gates, in the case at bar, the “basis of knowledge” prong of the Aguilar test was satisfied by the most common means: a positive statement of the informant’s personal observation. The informant stated that he had been at the location at 1024 Oakley Avenue on different occasions; that the last time was within the past four days; that on every occasion he has observed a person by the name of Dave selling drugs; and that he has seen quantities of drugs at this residence. Such information coming from a reliable and credible informant and based on his personal knowledge gathered through the sense of sight constitutes a sufficient basis upon which the issuing judge may make a determination of probable cause.

The defendants further contend that the affidavit is insufficient in that it fails to allege the particular properties which led the informant to conclude that the substance he observed on the premises was an illegal drug.

The determination of whether there is probable cause to support a search warrant requires a pragmatic analysis of everyday life on which reasonable and prudent men, not legal technicians, act. (See People v. Blitz (1977), 68 Ill. 2d 287, 292.) Affidavits should not be found deficient through a hypertechnical scrutiny. United States v. Ventresca (1965), 380 U.S. 102, 109, 13 L. Ed. 2d 684, 689, 85 S. Ct. 741, 746.

Here, the affidavit indicated that on several occasions, the informant was inside the subject premises and he directly observed a quantity of drugs. He also observed a man named Dave selling drugs. From the facts averred in the affidavit, the issuing judge could have inferred that the reliable, confidential informant was familiar with controlled substances. Unlike People v. Davenport (1974), 19 Ill. App. 3d 426, cited by the defendants, there is no indication that the informant’s conclusion was based on conjecture. Therefore, the judge’s issuance of the warrant in reliance on these statements of personal observation by the reliable informant is justified (see People v. Curry (1980), 84 Ill. App. 3d 256, 259).

To support the issuance of a search warrant, facts must be related which would cause a reasonable man to believe that a crime had been committed and that evidence of the crime was in the place to be searched (People v. Smith (1979), 72 Ill. App. 3d 956, 962), and the court must interpret and test the supporting affidavit in a common sense and realistic fashion (People v. Thomas (1975), 62 Ill. 2d 375, 381). Interpreting the reliable informant’s statements in a realistic, common sense fashion, we conclude that the issuing judge was given sufficient facts from which he could make a determination of probable cause and the trial court did not err in refusing to quash the warrant.

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

Affirmed.

SEIDENFELD, P. J., and HOPE, J., concur.


text:
      In re MARRIAGE OF BETTIGENE RANSOM, Petitioner-Appellant, and LENNOX RANSOM, Respondent.—(STEPHEN H. KATZ, Appellee.)
    Second District
    No. 80-999
    Opinion filed December 7, 1981.
    James L. Frazin, of Palatine, for appellant.

      No brief filed for appellee.
   JUSTICE NASH

delivered the opinion of the court:

Petitioner, Bettigene Ransom, appeals from a judgment for $1847.60 entered against her in favor of her former attorney, Stephen M. Katz, pursuant to Katz’ post-trial petition for the award of his attorney’s fees from his own client.

Appellee Katz has not chosen to file a brief in this court; however, we will consider the merits of the appeal under the standard set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 131, 345 N.E.2d 493, 494.

Bettigene Ransom, who was then represented by other counsel, filed a petition for dissolution of her marriage to Lennox Ransom on October 14, 1979, and an order finding grounds for dissolution was entered on March 14, 1980. Her original counsel thereafter withdrew, and attorney Katz entered his appearance on her behalf on April 14,1980. Although the March 14 order was not vacated, a second order finding grounds for dissolution was entered by the trial court on July 7, and on August 6,1980, the trial court entered a final judgment of dissolution. It found inter alia that the three children born of the marriage were emancipated and incorporated a marriage settlement agreement of the parties in which they allocated their property between them. The agreement also provided that Bettigene receive a lump sum in lieu of maintenance and that Lennox waived any claim to maintenance from her. Each of the parties agreed to pay their own attorney fees.

Neither of the parties to the dissolution have thereafter appealed from the judgment entered on August 6, 1980.

On October 16,1980, 72 days after entry of the judgment of dissolution, attorney Katz filed a petition in the same cause pursuant to section 508 of the Illinois Marriage and Dissolution of Marriage Act (111. Rev. Stat.

1979, ch. 40, par. 508), in which he sought a judgment for his attorney fees and costs advanced against Bettigene for legal services rendered on her behalf in the dissolution proceeding. It alleged that he had performed legal services for her in the course of which he expended 35 hours and that a fair and reasonable fee for those services was $2,450; that she had paid him the sum of $1,000; that he had advanced costs on her behalf of $397.60; and sought a judgment for the balance due of $1,847.60. After a hearing held October 16, 1980, in which Bettigene appeared pro se, the trial court awarded $1,847.60 to Katz and entered judgment with execution to issue. The next day Katz instituted a non-wage garnishment proceeding against Lennox Ransom, her former husband, to enforce his judgment against funds due Bettigene under the settlement agreement. Bettigene’s motion to reconsider the judgment for fees, presented by new counsel, was denied and she appeals.

Bettigene contends that (1) the trial court lacked jurisdiction to hear the petition by her attorney for his fees from her brought more than 30 days after judgment; (2) the trial court failed to consider evidence regarding the financial resources of the parties, legal services performed, or the reasonableness and necessity of those services; and (3) attorney Katz failed to give her an adequate notice of the hearing of his petition for fees.

We consider first the jurisdictional issue which is raised by Bettigene for the first time on appeal.

Generally, a trial court does not retain jurisdiction over the parties or the subject matter so as to permit it to review, modify or grant other relief after the expiration of 30 days from entry of a final judgment. (Spears v. Spears (1977), 52 Ill. App. 3d 695, 697, 367 N.E.2d 1004, 1006-07; Ill. Rev. Stat. 1979, ch. 110, par. 68.3; see also Ill. Rev. Stat. 1979, ch. 110, par. 72.) Lack of jurisdiction of the parties or by passage of time may be waived, however, and Bettigene has done so in this case. (See Asumendi v. Fortman (1978), 58 Ill. App. 3d 186, 190, 374 N.E.2d 20, 23.) She appeared personally in the trial court in opposition to attorney Katz’ petition and thereafter filed responsive pleadings seeking to set aside the judgment for attorney fees. By doing so without objection to the trial court’s continuing jurisdiction Bettigene revested its authority which had been lost by the passage of time. (See Ridgely v. Central Pipe Line Co. (1951), 409 Ill. 46, 50, 97 N.E.2d 817, 820; Stark v. Roussey & Associates, Inc. (1970), 131 Ill. App. 2d 379, 381, 266 N.E.2d 439, 441.) Accordingly, the trial court had jurisdiction, under these circumstances, to enter the order from which Bettigene has appealed and we do not reach the merits of the jurisdictional question raised for the first time on appeal. Compare In re Marriage of Reczek (1981), 95 Ill. App. 3d 220, 420 N.E.2d 161; Seniuta v. Seniuta (1977), 49 Ill. App. 3d 329, 364 N.E.2d 327; see In re Custody of Sexton (1981), 84 Ill. 2d 312, 319, 418 N.E.2d 729, 732-33; In re Marriage of Wright (1980), 92 Ill. App. 3d 708, 713, 415 N.E.2d 1196, 1200-01; In re Marriage of Erby (1980), 84 Ill. App. 3d 672, 406 N.E.2d 79; Pettit v. Pettit (1978), 60 Ill. App. 3d 375, 378, 376 N.E.2d 782,785; Brickey v. Brickey (1976), 44 Ill. App. 3d 563, 358 N.E.2d 406.

Petitioner next contends that the trial court was required to consider the financial resources of the parties before awarding fees to her attorney and did not do so.

Attorney fees are primarily the responsibility of the party for whom the services are rendered. (Gilmore v. Gilmore (1979), 74 Ill. App. 3d 831, 393 N.E.2d 33.) However, if one spouse demonstrates a financial inability to pay attorney fees and the ability of the other spouse to do so, an award for that purpose may be justified in order to prevent an advantage due to a financial disparity between them. (In re Marriage of Reczek (1981), 95 Ill. App. 3d 220, 221, 420 N.E.2d 161, 162; In re Marriage of Erby (1980), 84 Ill. App. 3d 672, 676, 406 N.E.2d 79, 82.) Absent such a showing the court cannot order one spouse to pay the other’s attorney fees. In re Marriage of Miller (1980), 84 Ill. App. 3d 931, 937, 405 N.E.2d 1099, 1104, appeal denied (1980), 81 Ill. 2d 593.

In our view, this rationale does not apply where an attorney seeks fees from his own client pursuant to section 508(a) of the Act. In such cases the purpose of the proceeding is not to enable the less affluent spouse to maintain or defend the action but is directed to promoting judicial economy by eliminating the former requirement that an attorney bring a separate suit for such fees against his own client. (Ill. Ann. Stat., ch. 40, par. 508, Historical & Practice Notes, at 637 (Smith-Hurd 1980).) Regardless of the respective financial circumstances of the spouses, an attorney is still entitled to seek payment for his services from his own client, and the legislature in providing this procedure did not intend that it be conditioned upon the financial abilities of the parties.

Petitioner also contends that the fee awarded by the trial court was neither reasonable nor necessarily incurred.

An award of attorney fees is left to the sound discretion of the trial court and will be reversed only for an abuse of that discretion. (In re Marriage of Pedersen (1979), 77 Ill. App. 3d 716, 720, 396 N.E.2d 659, 661.) The statute authorizes payment of “a reasonable amount for his own * * * attorney’s fees ” * and requires that such fees be “necessarily incurred”. (111. Rev. Stat. 1979, ch. 40, par. 508(a).) In awarding fees the trial court must look to the attorney’s skill and standing, the nature of the controversy, the novelty and difficulty of the questions at issue, the importance of the subject matter, the degree of responsibility involved in the management of the case, the time and labor required, the usual and customary charge in the community, and the benefits resulting to the client. (In re Marriage of Jacobson (1980), 89 Ill. App. 3d 273, 276, 411 N.E.2d 947, 949; Christian v. Christian (1979), 69 Ill. App. 3d 450, 458-59, 387 N.E.2d 1254, 1260-61, appeal denied (1979), 75 Ill. 2d 589.) In making its determination of what is a reasonable fee the court will employ these factors and hear evidence as to their applicability. The court is not bound by the attorney’s opinion as to what constitutes a reasonable fee and must inquire into all of the necessary factors. (Welsh v. Welsh (1976), 38 Ill. App. 3d 35, 39, 347 N.E.2d 512, 516.) The time spent on the case is the factor of greatest importance. (In re Marriage of Reczek (1981), 95 Ill. App. 3d 220, 222, 420 N.E.2d 161, 163.) An attorney’s general statement as to the time spent is an insufficient basis for a fee award and detailed time records are usually required. (In re Marriage of Jacobson (1980), 89 Ill. App. 3d 273, 277, 411 N.E.2d 947, 950.) He must itemize both the time expended and the work performed. In re Marriage of Raidbard (1980), 87 Ill. App. 3d 158, 163, 408 N.E.2d 1021, 1026.

Attorney Katz’ petition for fees alleged that he spent 35 hours on the case and that a fair fee for his services was $2,450. It further stated that he had advanced unspecified costs of $397.60. At the hearing, Katz advised the court that he had informed Bettigene his fee was to be $75 per hour and that he would require a $1,000 retainer; she agreed to those terms and paid the retainer. He testified the divorce was difficult and respondent difficult to work with, but he brought about a settlement. He also testified that he was a capable and eminently qualified attorney, that his time records reflected 38.25 hours expended on the case, and that his legal fees amount to $2,847.60 with a balance due of $1,847.60.

Bettigene agreed the fee arrangement was as Katz stated but she didn’t think his services amounted to that much and that he didn’t do an adequate job. She stated she had no idea what his fees were when she agreed to the settlement provision that each party would pay their own attorney fees and, also, that he did not finish the job.

Katz responded that he had advised her his fees could exceed the retainer and that time was the only factor which would determine the fee.

The trial court thereupon found that $75 per hour was a reasonable rate and the services rendered were necessary; it awarded Katz $1,847.60 and entered judgment.

No evidence was presented, however, as to the nature of the services performed by Katz, that the hourly rate of $75 was reasonable for those services or that the number of hours incurred were necessary to the resolution of this case; nor were the costs advanced itemized in any way. We have noted that attorney Katz first appeared in this case at a late stage, there were no contested matters heard in court and his services apparently were directed solely to bringing about the settlement agreement to which the parties eventually agreed. The record discloses that at the time Katz was retained Bettigene’s legal fees to earlier counsel exceeded $4,000 for services they had performed in this case. We are unable to determine when Katz performed the services for which he claims fees, whether any portion of such services may have been carried out by earlier counsel or the extent to which his efforts may have brought about the settlement of the disputed matters between the parties.

We conclude that the fee award must be set aside and this matter remanded for further hearing at which the requisite factors relating to fees which we have discussed may be considered by the trial court. See In re Marriage of Raidbard (1980), 87 Ill. App. 3d 158, 163, 408 N.E.2d 1021, 1025; In re Marriage of Pedersen (1979), 77 Ill. App. 3d 716, 720, 396 N.E.2d 659, 662.

Bettigene finally contends that the notice by which attorney Katz advised her of the hearing of his petition for fees was defective as it identified Katz as “attorney for petitioner.” She argues that public policy should prohibit an attorney from petitioning for fees against a client without giving notice to the client that he is appearing in a new role as adversary rather than advocate, citing Ill. Rev. Stat., 1980 Supp., ch. 110A, Canon 5, Rule 5 — 101 and Rule 5 — 102.

Katz’ petition, appended to the notice, clearly indicated that he was seeking fees against Bettigene. His identification of himself as attorney for petitioner merely noted his status in that matter. She appeared personally in response to the notice and was advised by the court of Katz’ position with regard to his petition, and the trial court offered to continue the matter to give her an opportunity to obtain counsel if she wished to do so. She declined and appeared pro se in this proceeding.

As section 508(a) does permit an attorney to proceed against his client for fees it would not be considered to be in violation of the canons of ethics to do so. See Ill. Rev. Stat., 1980 Supp., ch. 110A, Canon 4, Rule 4 — 101, and Canon 5, Rule 5 — 101.

Accordingly, we reverse the judgment of the trial court awarding attorney fees and remand this cause for further hearing directed to the reasonableness and necessity for such fees consistent with the principles set forth herein.

Reversed and remanded.

HOPF and LINDBERG, JJ, concur.