author: JUSTICE HEIPLE

text:
    JAMES ROBINSON, Plaintiff-Appellee, v. THE DEPARTMENT OF LABOR et al., Defendants-Appellants.
    Third District
    No. 3-83-0134
    Opinion filed November 4, 1983.
    Neil F. Hartigan, Attorney General, of Springfield (Kathryn A. Spalding, Assistant Attorney General, of counsel), for appellants.
    Daniel L. Blauw, of Prairie State Legal Services, Inc., of Rock Island, for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

The defendant, Illinois Department of Labor, appeals from a judgment awarding the plaintiff, James Robinson, unemployment insurance benefits. We reverse.

The plaintiff was discharged by his employer after missing work for three consecutive days. The plaintiff had requested time off from work on November 5, 1981, in order to handle a personal problem. In making this request, the plaintiff talked to the personnel manager. The personnel employee explained to the plaintiff that a request for time off had to be made to the plaintiff’s foreman. There was conflicting evidence as to whether the plaintiff understood this instruction. The plaintiff testified that he did not fully understand this instruction. However, in a statement made in the course of applying for benefits, he stated that he was told to request permission from his foreman.

The same evening, the plaintiff collected his paycheck from the acting foreman. The plaintiff did not ask the acting foreman for permission to be absent. After his three-day absence, the plaintiff was told that his employment had been terminated.

The plaintiff filed an application for benefits on November 17, 1981. The plaintiff’s application was denied on all administrative levels by the Department of Labor. The plaintiff then appealed to the circuit court of Rock Island County. The court reversed the decision of the Department and awarded benefits to the plaintiff, concluding that the Department misunderstood the requirements of the collective bargaining agreement between the plaintiff’s employer and union. It is from this decision that the defendant Department now appeals.

Section 602 of the Unemployment Insurance Act (Ill. Rev. Stat. 1981, ch. 48, par. 432) provides that an individual is ineligible for benefits (unless he had requalified) if he has been “discharged for misconduct connected with his work.” The issue therefore is whether the plaintiff’s conduct constituted “misconduct” which would render him ineligible for benefits.

The plaintiff was bound by the collective bargaining agreement between his employer and his union. Article VI, section 3 of the collective bargaining agreement provides, in relevant part:

“An employee’s seniority and his employment with the Company shall be terminated if any of the following occurs:
* * *
(c) He is absent from work for three (3) consecutive working days without notifying the Company and without a reasonable excuse therefor acceptable to the Company; ***.”

The trial court interpreted this agreement to require that the plaintiff only notify his employer of the forthcoming absence, rather than seek permission for the absence from his foreman. The trial court found that, because the plaintiff had notified the personnel department of his absence, the plaintiff had complied with the collective bargaining agreement and was not guilty of misconduct.

We must respectfully disagree with the trial court. “Misconduct in connection with work” was defined by the court in Granite City Steel Division of National Steel Corp. v. Board of Review of the Department of Labor (1979), 68 Ill. App. 3d 264, 385 N.E.2d 931, as including a disregard of the standards of behavior which the employer has a right to expect, and a deliberate violation of the employer’s rules. It is undisputed that the plaintiff was told by his employer to seek permission for the absence from his foreman. It is also undisputed that the plaintiff did not do so. Further, the plaintiff was aware of the employer’s attendance policy because he had previously been disciplined for being absent. The plaintiff clearly disregarded the standards of behavior which his employer had a right to expect and deliberately violated the employer’s rule on obtaining permission for absence from work.

The function of a trial court in reviewing an administrative agency’s decision is limited to ascertaining whether that decision is against the manifest weight of the evidence. (Department of Mental Health & Developmental Disabilities v. Civil Service Com. (1981), 85 Ill. 2d 547, 426 N.E.2d 885.) In the instant case, the manifest weight of the evidence clearly demonstrates that the plaintiff violated the rules and procedures established by the employer in connection with absences from work. The trial court therefore erred in reversing the decision of the defendant Department of Labor.

The judgment of the circuit court of Rock Island is reversed.

Reversed.

STOUDER, P.J., and ALLOY, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE WEBBER

license: Public Domain

text:
      In re ESTATE OF FRANK F. ZORN, Deceased—(Clair Zorn et al., Petitioners-Appellants, v. Gladys Zorn, Ex’r of the Estate of Frank F. Zorn, Deceased, Respondent-Appellee).
    Fourth District
    No. 4—83—0186
    Opinion filed October 24, 1983.

      John E. Cunningham, of Chicago, for appellants.
    John A. Taylor, of Johnson & Taylor, of Pontiac, for appellee.
   PRESIDING JUSTICE WEBBER

delivered the opinion of the court:

The petitioners appeal from an order of the circuit court of Livingston County which granted the executor’s motion to strike the petitioner’s motion to dismiss issuance of letters testamentary. The petitioners argue on appeal that the circuit court lacked jurisdiction to issue the letters and, in the alternative, that the executor is attempting to perpetrate a subterfuge upon the court. We affirm.

The decedent, prior to his death, had been the owner of farm property in Livingston County, Illinois. On August 12, 1980, a purported deed to this property was recorded in Livingston County by which a remainder interest in the property was conveyed to his children, petitioners herein. The decedent retained a life estate. Soon afterwards in 1980 the decedent and his wife (the executor herein) filed a complaint in the circuit court of Livingston County asking the court to set aside the deed because it had been procured through undue influence or fraud. The defendants in that case are petitioners in the present case. At the time of the entry of the order in this case, the suit to set aside the deed had not yet come to judgment.

On October 13, 1982, the executor, widow of the decedent, filed a petition in the circuit court of Livingston County for probate of decedent’s will and the issuance of letters testamentary. She had been nominated as executor in the will and was serving as executor in Indiana where she and the decedent had been domiciled. In the petition she listed the farm real estate and its income as decedent’s only estate in Livingston County, Illinois. On December 7, 1982, the widow submitted an inventory to the court of the decedent’s estate in Livingston County. This inventory listed the real estate in question and included as part of the personal estate the interest in the litigation to set aside the deed to this real estate and an interest in growing crops on the real estate. On December 27, 1982, the court issued an order admitting the will to probate and appointing the widow as executor.

The petitioners then moved to dismiss the issuance of letters alleging that since there was no property in Illinois, the court lacked jurisdiction to issue the letters testamentary. The executor moved to strike the petitioners’ motion. On February 7, 1983, the circuit court granted the executor’s motion, specifically finding that the ongoing litigation over the Livingston County real estate was a sufficient basis on which to admit the will to probate in that county. Petitioners filed a timely notice of appeal.

All parties in this litigation characterize the interest of the decedent’s estate in the suit to set aside the deed as a chose in action. The petitioners argue flatly that this interest does not constitute any kind of an “estate” in Illinois and that therefore there is no purpose for an Illinois court to issue letters testamentary. However, section 5 — 2 of the Probate Act of 1975 (Ill. Rev. Stat. 1981, ch. lHWa, par. 5 — 2) expressly includes a chose in action as part of an estate in Illinois. It reads:

“For the purpose of granting administration of both testate and intestate estates of nonresident decedents or estates of nonresident missing persons, the situs of tangible personal estate is where it is located and the situs of intangible personal estate is where the instrument evidencing a share, interest, debt, obligation, stock or chose in action is located or where the debtor resides if there is no instrument evidencing the share, interest, debt, obligation, stock or chose in action in this State.”

Furthermore, Illinois courts have recognized that a cause of action, though presently of undetermined value, may constitute an asset of an estate. (In re Estate of Hoffman (1972), 6 Ill. App. 3d 438, 286 N.E.2d 103; Parish v. Parish (1963), 29 Ill. 2d 141, 193 N.E.2d 761; 19 Ill. L. & Prac. Executors and Administrators sec. 76 (1956).) Therefore, the interest of the estate in litigation concerning the Livingston County farm land is an asset of the estate. Any asset located in Illinois is sufficient to confer jurisdiction upon our courts to admit a will to probate and to issue letters testamentary. The circuit court did not err in doing so here.

The petitioners argue in the alternative that the executor is attempting to perpetrate a subterfuge on the court. They argue that the executor, once appointed, plans to renounce the will and her executor-ship. The court below did not consider this argument. While it should be noted that an executor is allowed to renounce a will in Illinois (In re Estate of Donovan (1951), 409 Ill. 195, 98 N.E.2d 757), any argument to that effect now is premature.

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

Affirmed.

MILLS and TRAPP, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LESLIE FEAGANS, Defendant-Appellant.
    Fourth District
    No. 4—83—0067
    Opinion filed October 27, 1983.

      Daniel D. Yuhas and James G. Woodward, both of State Appellate Defender’s Office, of Springfield, for appellant.
    J. William Roberts, State’s Attorney, of Springfield (Robert J. Biderman and John M. Wood, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE WEBBER

delivered the opinion of the court:

Defendant was convicted by a jury of the offenses of murder and armed robbery, violations of sections 9 — 1 and 18 — 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, pars. 9 — 1 and 18 — 2). He was sentenced to concurrent terms of 30 years for murder and 10 years for armed robbery.

The principal evidence against defendant consisted of two lengthy statements made by him to the police. On April 27, 1982, the police had been alerted by an anonymous telephone caller that defendant may have been involved in a slaying. Defendant’s statements were obtained after a resulting investigation. One statement was made to Detective Thomas Kramp of the Springfield police department on April 28, 1982. The other was made on the following day to Detective A1 Sample of the Sangamon County sheriff’s department.

Both statements were substantially the same in content. They described the events which culminated in the robbery and murder of Charles Cummings, the victim. In the statements, defendant admitted that on March 18, 1982, he spent the evening drinking at several Springfield taverns with Cummings, David Landers, and Robert Feagans, defendant’s brother. Defendant knew the victim only as Chuck and claimed to have met him at one of the taverns. During the course of the evening, defendant bought Cummings several drinks; while the four were driving in Robert Feagans’ car, defendant asked Cummings to repay him for the liquor he had purchased. Cummings, however, responded that he had no money. With that, defendant threatened the victim with a leaded club which was handed to him by Landers. At some point, Landers suggested that they kill Cummings. Defendant claimed that he protested and thought that he, Landers, and his brother had agreed to simply drop the victim off in the woods so that he would have to walk back to town. Defendant told Cummings to remove his shirt and shoes. His shoes and glasses were thrown out of the window. Defendant stated that he tore the victim’s shirt into strips and then handed the strips to his brother who used them to tie Cummings’ hands. Defendant claimed that he was so intoxicated that he lost consciousness. When he revived, the victim was no longer in the car.

Later, defendant claimed that Landers and his brother informed him that they had taken $2.35 from Cummings and then pushed him over a bridge. Defendant stated that he was unsure whether Landers and his brother had told him the truth about what happened to Cummings. On April 27, 1982, he decided to return to some of the taverns where he, Cummings, Robert Feagans, and Landers had been drinking on March 18. He sought to determine whether any of the bartenders recalled seeing them that night.

Defendant claimed in his pretrial statements that he had nothing to do with pushing the victim over the bridge and that he received none of the victim’s money.

Other prosecution evidence confirmed that the four had been drinking together on March 18. A bartender from the Runway Tavern in Springfield recalled that he refused them service because all four men were obviously intoxicated. He, however, allowed them to purchase a six-pack of beer before leaving the tavern. Another bartender testified that defendant and Cummings were in his place of business on March 18 and were seen drinking and playing pool with two other men. He recalled that defendant returned to the tavern on April 27, 1982, inquiring about Cummings. In the course of their conversations on this day, defendant stated that he thought Cummings had been killed. After defendant left the tavern on April 27, the bartender contacted the police. It was apparently this telephone call which prompted the police to investigate Cummings’ disappearance.

Cummings’ body was found on May 2, 1982. It was discovered by two fishermen on the east bank of the Sangamon River near the Route 29 Sangamon River bridge. The victim had apparently been gagged and his hands and legs had been bound. The cause of his death was determined to have been drowning. Although $60 was recovered from one of the victim’s socks, one of his pants pockets had been turned inside out, indicating that he had been robbed.

Defendant’s testimony at trial largely paralleled his pretrial statements. He claimed, however, that he had nothing to do with preparing the bindings for the victim’s hands. Defendant also attempted to minimize the nature of the threat he employed when he asked Cummings to repay him for the drinks he had purchased. Defendant again claimed that he was intoxicated and was unconscious at the time Landers and his brother robbed and murdered the victim. Defendant estimated that he drank more than a case of beer during the afternoon and evening of March 18.

Donna Feagans, defendant’s wife, testified that her husband arrived home during the early morning hours of March 19. He had been driven home by David Landers and Robert Feagans. She described defendant as “totally drunk” when he entered the house at this time. Mrs. Feagans also testified that it was not unusual for her husband to lose consciousness after consuming excessive amounts of alcohol.

The State proceeded under the theory that defendant was accountable for the conduct of Landers and Robert Feagans. The jury was instructed on the law of accountability and returned general verdicts of guilty to charges of murder and armed robbery.

Defendant does not contest the sufficiency of the evidence against him. Instead, he complains that the statement he made to Detective Kramp on April 28 was improperly admitted into evidence. Defendant challenged the admissibility of both of his statements to the police in a written pretrial motion to suppress. He alleged, in part, that the statements were involuntary because he was again intoxicated at the time they were made. During the hearing on defendant’s motion to suppress, Officer Kramp testified that on April 28, he interrogated defendant and also wrote down his statement. In Kramp’s opinion, defendant was not intoxicated at the time. Kramp, however, acknowledged that Officer Duke, an identification officer, witnessed defendant’s signature to the statement and was also present when the statement was made. Duke, however, did not testify at the suppression hearing, nor was his absence explained by the State. Defendant contends that the State’s failure to call Duke as a witness mandates the suppression of his statement to Kramp and warrants a reversal of his conviction.

It is well established that when the voluntary nature of a confession is called into question by a motion to suppress, the State has the burden of proving that the confession or statement was voluntarily given. (People v. Armstrong (1972), 51 Ill. 2d 471, 282 N.E.2d 712.) The State can discharge this burden only by producing all material witnesses connected with the controverted statement or explain their absence. Armstrong.

The People urge that there was no indication that Officer Duke actively participated in the interrogation or did anything more than merely observe defendant sign his statement. They argue there was nothing to demonstrate that Duke was any more of a material witness than any other police personnel who happened to be present at police headquarters and who may have briefly observed defendant. The record, however, belies these contentions. The following occurred at the suppression hearing during cross-examination of Officer Kramp:

“Q. Okay. So he [Duke] was there at the time you made or at the time you made the warnings and the time you gave Mr. Feagans his rights and he was also there during the question and answer period?
A. That’s correct.
Q. Was he there during the time that Mr. Feagans read over his statement and signed it?
A. Yes, sir, I believe he was. He was there during the whole thing, if I recall.
Q. All right. And if Mr. Feagans was intoxicated or not intoxicated presumably he would have an opinion or be able to form a judgment of that matter, too?
A. That’s correct.”

Clearly, Officer Duke was a material witness to defendant’s statement. The State should either have had him testify or explained his absence. Defense counsel timely objected to the witness’ absence. The trial court ruled that both statements were voluntarily made without specifically addressing defendant’s objection. Under these circumstances, we conclude that defendant has demonstrated error. Defendant’s statement to Detective Kramp should have been suppressed.

The State, however, urges that defendant’s statement to Detective Sample on April 29 convincingly established his guilt. Defendant, on appeal, does not challenge the admissibility of his statement to Samples. As already noted, both of defendant’s pretrial statements were similar in content. Accordingly, the People urge that any error in the admission of his statement to Kramp was harmless beyond a reasonable doubt. See Chapman v. California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824.

We view the evidence in this case as closely balanced. There was no evidence suggesting that defendant acted as a principal. His pretrial statements indicated a more active involvement in the crimes than did his trial testimony. The prosecutor, in an attempt to bolster his case, argued to the jury that defendant’s pretrial statements were more believable because they were consistent and tended to corroborate each other. We thus cannot discount the effect that the improperly admitted evidence might have had upon the jury and are persuaded that defendant was denied his right to a fair trial.

Defendant has also demonstrated reversible error in the jury instructions. He tendered to the court a voluntary intoxication instruction. Voluntary intoxication is an affirmative defense if the defendant’s intoxicated condition negatives the existence of a mental state which is an element of the offense. (Ill. Rev. Stat. 1981, ch. 38, par. 6 — 3.) The court refused the instruction, concluding:

“I grant you your client *** may have finally passed out and been drunk and not capable of forming any intent at the stage that he claims, but before that stage he testified he remembered what happened and I do not believe that he was intoxicated to the extent claimed.”

The evidence upon which defendant was convicted was designed to prove that he was accountable for the conduct of David Landers and Robert Feagans. Because of the bifurcated actions of the three men, defendant’s convictions for murder and armed robbery required proof of defendant’s specific intent to “promote or facilitate” the commission of the offenses. (Ill. Rev. Stat. 1981, ch. 38, par. 5— 2(c).) Thus, voluntary intoxication was a viable defense in this case, if defendant’s alleged intoxication rendered him incapable of acting intentionally.

Generally, voluntary intoxication must be so extreme as to suspend all reason; merely being drunk or intoxicated is insufficient to create a defense. (People v. Moon (1982), 107 Ill. App. 3d 568, 437 N.E.2d 823.) Here, defendant gave unrebutted testimony that he consumed in excess of a case of beer on the day in question. Other witnesses corroborated the fact that he was extremely intoxicated. Defendant claimed that his intoxication rendered him unconscious at the time the victim was robbed and murdered. The People, however, argue that there was no indication of defendant’s inability to think up until the point where he purportedly lost consciousness, by which time the defendant had already facilitated the commission of the crime. They point to defendant’s ability to recall the events which preceded his loss of consciousness. Nonetheless, if defendant’s testimony is believed, his intoxication must have been extreme. The fact that the trial court did not believe that defendant was intoxicated to the extent that he claimed is irrelevant. Sufficient evidence was presented to raise an issue of fact for the jury. The tendered instruction should have been given.

Even though the foregoing errors entitle defendant to a new trial, we will briefly address his remaining issue. Defendant complains that the trial court should have excused for cause one of the prospective jurors because he indicated at one point during the voir dire that he might consider the testimony of a police officer more favorably than the testimony of other witnesses. Defendant, however, failed to exhaust all of his allotted peremptory challenges. Thus, he is precluded from complaining that the juror was improperly impaneled. See People v. Ford (1960), 19 Ill. 2d 466, 168 N.E.2d 33.

For all the foregoing reasons, defendant’s convictions for murder and armed robbery are reversed. The cause is remanded for a new trial.

Reversed and remanded for a new trial.

TRAPP and GREEN, JJ., concur.


author: JUSTICE MILLER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GARY SEXTON, Defendant-Appellant.
    Fourth District
    No. 4—82—0857
    Opinion filed October 28, 1983.
    Daniel D. Yuhas and Jonathan Haile, both of State Appellate Defender’s Office, of Springfield, for appellant.

      Ronald C. Dozier, State’s Attorney, of Bloomington (Robert J. Biderman and Kevin T. McClain, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE MILLER

delivered the opinion of the court:

Defendant was convicted of the offense of residential burglary and sentenced to a term of 4 years’ imprisonment. He appeals from the judgment, contending (1) that the trial court erred by refusing to instruct the jury on the elements of the offense of burglary and (2) that the trial court erred in failing to suppress evidence obtained by the police as a result of an improper search and seizure.

The defendant admitted that he broke into a house on March 25, 1982, located at 1901 East Oakland Avenue, Bloomington, intending to commit a theft. He took a medical bag from the basement of the house. He testified that he believed that the house was unoccupied. The grass around the house was about a foot and a half high and a quantity of mail was wedged between the front doors of the house. He also testified that he had never seen a car in the driveway of the house and that the grass was always high.

Dr. Thomas S. Gumming testified that he owned a house at 1901 East Oakland, Bloomington. On March 25, 1982, Dr. Gumming did not actually reside in the house on Oakland Avenue. His primary residence was at 302 Jayne Street, Heyworth, Illinois. He testified that occasionally he stayed overnight or spent the weekend in the Oakland Avenue house. Dr. Gumming testified that he “used to stop in every other day or so to pick up any mail and check on the furnace during the winter, air conditioning in the summer.” The last people to actually live in the house were Bob Finnegan and Dr. Gumming’s daughter, Cheryl. Dr. Gumming was not sure when Bob and Cheryl moved out, but believed it was sometime between January and March of 1982.

Defendant contends that the record contains evidence supporting his position that the building located at 1901 East Oakland was not “the dwelling place of another” within the meaning of the residential burglary statute. (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 3.) Defendant asserts that he was entitled to have the jury instructed on the offense of burglary. We disagree.

A person commits the offense of residential burglary when he <<*** knowingly and without authority enters the dwelling place of another with the intent to commit therein a felony or theft.” (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 3.) The term “dwelling” is defined as “a building or portion thereof, a tent, a vehicle, or other enclosed space which is used or intended for use as a human habitation, home or residence.” (Emphasis added.) Ill. Rev. Stat. 1981, eh. 38, par. 2 — 6.

It is clear from the language used by the legislature that the residential burglary statute was intended to apply to burglaries of structures intended for use as residences, regardless of whether the structure was being actively used as a residence at the time the burglary was committed. In enacting the residential burglary statute, the legislature sought to deter burglaries of citizens’ homes by making such burglaries Class 1 felonies, differentiating those burglaries from the offense of simple burglary, which is a Class 2 felony. This legislative purpose of deterring residential burglaries would not be served by making the application of the statute dependent upon the wholly fortuitous circumstance of whether a structure intended to be used as a residence was actually being used as a residence at the time the burglary was committed.

The evidence contained in the record relates, as a matter of law, only to the offense of residential burglary. Therefore, defendant was not entitled to a lesser included offense instruction on burglary, since the jury would only have been justified in returning a verdict on the greater offense of residential burglary. See People v. Lockett (1980), 82 Ill. 2d 546, 413 N.E.2d 378; People v. DeRosa (1941), 378 Ill. 557, 39 N.E.2d 1.

Defendant also claims that evidence resulting from an illegal seizure was admitted at trial. The record indicates that a warrant was issued authorizing a search of defendant’s apartment for the following items:

“Cannabis and hashish, a cannabis substance, and evidence of cannabis and hashish; plastic bags in which cannabis and hashish may be found; blond capsules and other pills marked RJS 109; controlled substances in a capsular pill form marked RJS 109; controlled substances and pills; paraphernalia used in ingesting, smoking or using cannabis and hashish including pipes, bongs and smoking devices; white powder; syringe; alcoholic beverages and their contents, U.S. currency.”

During a search conducted on April 23, 1982, a black medical bag was found under defendant’s dresser. The bag, according to the police report, contained several bottles of miscellaneous pills. Two hypodermic syringes and a stethoscope were also among the items found and seized by the police.

Officer Charles Crowe testified that he participated in the search of the defendant’s apartment and interrogated the defendant on April 24, 1982. Officer Crowe confronted the defendant with the medical bag which was found in the defendant’s apartment. Defendant told Officer Crowe that he found the bag, but later admitted taking the bag from the basement of the house at 1901 East Oakland.

Defendant contends that the seizure of the bag was not authorized by the search warrant and that the seizure was therefore unlawful. (Marron v. United states (1927), 275 U.S. 192, 72 L. Ed. 231, 48 S. Ct. 74.) He also maintains that his oral statement should have been suppressed as a fruit of the illegal seizure. Wong Sun v. United States (1963), 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407.

We note that defendant did not move to suppress the introduction of this evidence before trial or include the alleged error in his post-trial motion. In the present case, however, the black bag and defendant’s oral statements made after he was confronted with the bag by Officer Crowe were a significant portion of the State’s case. Therefore, wfe believe it is proper to consider the question of the legality of the seizure of the black bag even though defendant did not raise the issue below.

In Coolidge v. New Hampshire (1971), 403 U.S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2022, the court discussed the applicability of the “plain view” doctrine to a situation where the police have a valid warrant to search an area for certain items specified in the warrant and during the search discover some other items of an incriminating nature. Such items are subject to seizure if: (1) the police have come upon the items in plain view during a lawful search; (2) the items are of incriminating character and this fact is immediately apparent to the police; and (3) the items were discovered inadvertently during the search. See generally 2 LaFave, Search and Seizure sec. 4.11, at 163 (1978).

In the case at bar, defendant does not contend that the search was unlawful or that the black bag was not in plain view. Further, it is clear from the record that the discovery of the black bag was inadvertent. Because Dr. Gumming did not realize the bag was missing until the police showed it to him following the seizure, the police were not looking for the bag at the time of the search.

We must, therefore, determine whether the incriminating nature of the bag was immediately apparent to the officers. Given the facts and circumstances surrounding the seizure, we are of the opinion that at the time of the search the officers had probable cause to believe that the bag was stolen. (2 LaFave, Search and Seizure sec. 4.11(b), at 167 (1978).) That the defendant had come into lawful' possession of a medical bag containing several bottles of pills was unlikely. Also, the bag was found underneath a dresser in defendant’s apartment, which would indicate that defendant was trying to conceal the bag. Taken with the other items found in the search, we conclude that the incriminating nature of the bag was apparent to the officers when they found it under the dresser.

We hold, therefore, that the seizure of the black bag was lawful under the requirements set forth in Coolidge and that the bag and defendant’s oral statement made subsequent to the seizure were properly admitted into evidence. Because the seizure was proper, we need not discuss the question of defense counsel’s competency in failing to move to suppress the evidence.

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

Affirmed.

MILLS and GREEN, JJ., concur.


author: JUSTICE TRAPP

text:
    AMOCO OIL COMPANY, Plaintiff-Appellee, v. MORT A. SEGALL, Defendant-Appellant.
    Fourth District
    No. 4—83—0222
    Opinion filed October 27, 1983.

      Philip A. Summers, of Summers, Watson & Kimpel, and Segall Law Offices, P.C., both of Champaign, for appellant.
    Zimmerly, Gadau, Stout, Selin & Otto, of Champaign, for appellee.
   JUSTICE TRAPP

delivered the opinion of the court;

Plaintiff filed a complaint against defendant, an attorney, to recover in excess of $11,000 in credit card charges. The trial court entered final judgement against defendant for the claimed amount as a discovery sanction and subsequently denied defendant’s motion to vacate the judgment. Defendant appeals the judgment of the circuit court of Champaign County. We affirm.

On appeal defendant argues that the trial court erred (1) in denying him a protective order against plaintiffs scheduled discovery deposition; (2) by denying his motions to quash the deposition and to dismiss on the basis of accord and satisfaction; (3) by entering final judgment against him; and (4) by denying his request to recover fees for appearing at the deposition.

The lengthy chronology of this case is as follows.

On March 21, 1980, plaintiff filed complaint in this action. On April 25, defendant filed a motion to dismiss for want of security for costs alleging plaintiff was a nonresident, with notice of hearing set more than four months later on August 29,1980.

On May 15, 1980, plaintiff filed interrogatories to be answered by defendant and a request for defendant to admit. Defendant filed an objection to the interrogatories on the basis of the pending motion to dismiss, requested a protective order, and filed notice of hearing for August 29.

On May 28, 1980, plaintiff filed a motion to strike defendant’s motion to dismiss and objection to interrogatories, stating plaintiff had a certificate of authority to do business in Illinois; plaintiff set the hearing for June 5, 1980.

On June 2, 1980, defendant filed a motion to strike and vacate the notice of hearing for June 5, because plaintiff did not file notice to vacate his hearing date of August 29. This motion was withdrawn at the hearing on June 5, 1980; defendant’s motion was denied, his objections were overruled, and he was ordered to answer interrogatories within 28 days.

On June 23, 1980, defendant filed interrogatories to be answered by plaintiff, a request for production of plaintiff’s documents, a motion to dismiss for lack of specificity, and a motion for a protective order. On July 21, 1980, plaintiff filed notice setting hearing on defendant’s motions for August 7.

On August 7, 1980, defendant’s motion to dismiss was allowed with leave to file an amended complaint by August 28, with defendant to answer and file interrogatories by September 15. On August 26, plaintiff’s amended complaint was filed; photocopies of the credit slips and bills on defendant’s account were attached. On September 15, 1980, defendant filed answers to interrogatories stating that investigation of the matter was pending, denying all charges except the sum of $455 — without identifying which charges were correct and which were not — and asserting payments in excess of that amount. Defendant filed a motion to dismiss and a countercomplaint for an accounting on the same bases.

On October 8, 1980, plaintiff filed an answer to defendant’s countercomplaint. Eight and one-half months later, on June 26, 1981, plaintiff filed response to defendant’s request for production of documents (charge slips and bills previously attached to complaint).

On July 9, 1981, plaintiff filed response to defendant’s interrogatories, again attaching copies of the documents previously made available for inspection, and notice of hearing on defendant’s motion to dismiss set for August 26.

On August 26, 1981, a hearing was held before Judge Nicol. Plaintiff filed an affidavit in opposition to defendant’s motion to dismiss. Defendant’s motion was denied and defendant was ordered to answer or plead by September 11, 1981. On September 4, 1981, defendant filed an answer denying the allegations of the complaint.

On April 8, 1982, plaintiff filed notice to take the discovery deposition of defendant Segall on April 28. Segall did not appear at the April deposition.

On May 20, 1982, plaintiff filed a motion to compel discovery, stating defendant’s counsel called on April 27 and said defendant was on vacation. A hearing date of June 22 was set. On June 22, 1982, plaintiff’s motion was allowed and defendant was ordered to appear for discovery deposition on July 7, 1982. Defendant was represented at this hearing by attorney Philip A. Summers.

On July 1, 1982, defendant filed a motion for a protective order stating that defendant was a Florida resident and it would constitute an unreasonable annoyance and expense for him to come to Illinois; the motion requested the court require plaintiff to pay defendant’s reasonable travel expenses or, in the alternative, modify the order of July 7, 1982, and order plaintiff to take defendant’s deposition in Florida. In support, defendant filed the affidavit of Barbara Butts stating Segall was a Florida resident and it would constitute an unreasonable annoyance and expense for him to come to Illinois.

Defendant did not appear at the discovery deposition on July 7.

On August 12, 1982, plaintiff filed a motion to strike defendant’s pleadings and enter judgment by default for $11,130.38, and a notice setting hearing on the motion for August 27.

On August 27, 1982, upon defendant’s objections, Judge Nicol re-allotted the hearing for September 10, 1982. On September 8, 1982, defendant filed a reply to the motion for judgment on the pleadings, arguing that under Supreme Court Rule 204(a)(2) (87 Ill. 2d R. 204(a)(2)) defendant must be tendered expenses before his deposition; and set this reply and the motion for a protective order, filed more than two months earlier, for hearing on September 10, 1982. At the hearing the motions were taken under advisement.

On October 7, 1982, Judge Nicol entered a written order denying the motion for a protective order, entering judgment on liability for defendant’s failure to comply with the discovery order, striking defendant’s counterclaim and prohibiting him from filing additional counterclaims, and ordering defendant to appear for a discovery deposition as scheduled by plaintiff. The judge concluded defendant’s position was ill-founded:

“2. First, [defendant’s] request is untimely, coming two months after he has failed to appear for his deposition as ordered by the Court on June 22, 1982. His deposition was noticed initially by the Plaintiffs for April 28, 1982, by a notice sent to Defendant’s law office and to his counsel of record on April 8, 1982. Defendant filed no Motion for Protective Order but simply failed to show up at the deposition, representing through his attorney that he was on vacation. A hearing on Plaintiff’s motion to compel Defendant’s attendance at his deposition was noticed for June 22, 1982, by notice mailed on May 18, 1982. Yet, Defendant filed no Motion for Protective Order prior to the hearing June 22, 1982. It is transparent that the Defendant’s Motion is not only untimely, but calculated to delay the orderly progress of this case. Although he filed it on July 1, 1982, he failed to call it for hearing prior to the deposition or until two months later. The Court has no obligation to set a hearing on the motion automatically or to rule upon it sua sponte.
3. Second, because the Defendant failed to comply with the Court’s order to attend his deposition on July 7, 1982, and neither obtained nor even actively sought relief from a modification of that Order, he is not entitled to the protective powers of the Court. One should not be permitted simultaneously to defy the Court and to enjoy its protection. Mere filing of a motion, followed by inaction is not sufficient.
4. Thirdly, the Defendant is not a non-resident qualified for the protection of Supreme Court Rule 203. Defendant’s bald assertions of non-residéncy do not establish that status. Nor is it established when he claims to have become a Florida resident relative to the sequence of events in this case. The affidavit of Barbara Butts is utterly devoid of facts relevant to the substance of the issues and to the foundation necessary to demonstrate why the Court should believe that she has personal knowledge of relevant facts.
5. Finally, since the Defendant has filed a number of pleadings in this case on his own behalf showing a Champaign, Illinois address for his law office, it is patently clear that he transacts business in person or is employed in Champaign County and may properly be required to attend his deposition here. Moreover, in filing a Countercomplaint [sic] for Accounting, the Defendant has assumed the status of a Plaintiff and subjected himself to a Court’s order for deposition, even if he were a non-resident.
6. In his Reply to Motion for Judgment of the Pleadings, the Defendant’s attorney made reference to ‘an affidavit of Defendant in support’ which was ‘tendered with this Motion and Brief.’ No such affidavit has been filed, although the Reply itself is on file.
7. The Plaintiff has requested that Defendant’s pleadings be stricken and judgment entered against him as a sanction for failing to comply with the Court’s order that he attend his deposition on July 7, 1982. Although such a sanction should be imposed with the greatest reluctance, the Court concludes that no other sanction would be just or adequate and that the sanction requested is compelled by the Defendant’s conduct. Notwithstanding the fact that a judgment on all issues would be [an] appropriate sanction in this case, the Court is constrained to leave open the issue of the amount of damages claimed by Plaintiff, so as to afford the Defendant one final opportunity to litigate the essential merits of this case. To preserve this opportunity, the Defendant’s future conduct of this case will have to be forthright and forthcoming. This Court need not and will not tolerate further footdragging on the part of the Defendant.
8. Supreme Court Ride 219(c) outlines the sanctions available to the Court upon a party’s failure to comply with a Court order concerning discovery. These sanctions are inherently severe — certainly more severe than those provided in subpart (a) of that rule upon a refusal to answer certain questions. The severity is justified by the fact that the party has had ample opportunity to submit the dispute to the Court and has now been ordered by the court to respond in a definite and certain manner. The party’s failure to do so cannot be taken lightly lest the progress of discovery, and, in fact, the orderly administration of justice, be in jeopardy.
9. The Court notes that on no occasion in this proceeding has the Defendant demonstrated a good faith effort to arrange for the Plaintiff to take his deposition. In not one pleading filed with the Court has the Defendant identified a date or period when he would be available for his deposition. During oral argument before this Court, no date was suggested — in fact, no solution of any kind was offered. In effect, the Defendant has insisted on being coerced to attend his deposition. The Court regrets having to accommodate the Defendant, but finds there is no alternative reasonably likely to be effective.”

On October 20, 1982, plaintiff filed a notice of discovery deposition, setting defendant’s deposition for November 5, 1982. On October 25, 1982, defendant filed another motion for a protective order requesting $500 in travel expenses or, alternatively, that arrangements be made to take defendant’s deposition in Florida. Attached was an affidavit, notarized by attorney Chari Stowe on August 9, 1982, with defendant’s signature affixed by stamp, stating: “That Affiant’s wife has been since on or about January of 1982, and is now, suffering from a serious terminal illness requiring medical care and treatment out of the State of Illinois and as a result, Affiant has been, is now, and will in the future be unable to be present in the State of Illinois.” Defendant also filed a motion to amend, modify, and set aside the court’s October order on the basis of Segall’s affidavit.

On November 1, 1982, Judge Nicol conducted a hearing on pending motions. Defendant’s affidavits were stricken on plaintiff’s motion with leave to file amended affidavits before December 1, 1982. Argument was heard on defendant’s second motion for a protective order. The motion was denied.

On November 5, 1982, defendant presented himself at the office of plaintiff’s counsel for the scheduled discovery deposition. The examination, however, was cut quite short:

“Q. [By plaintiff’s counsel] Would you state your name and address for the record, please.
A. Mort A. Segall.
[By defendant’s counsel, Philip Summers, to plaintiff’s counsel] *** before we go any further, I want to, at this time, make a record in accordance with Supreme Court Rule 206. And the purpose of the making of this record is that we are objecting to the taking of this deposition at this time, and we are demanding that it be suspended until a proper order can be presented to the Court. And I want to ask Mr. Segall here a few questions, for the purpose of those objections.”

Summers then questioned Segall about his wife’s illness and medical treatment and about a letter and check allegedly sent to plaintiff settling the debt. Since defendant’s counsel would not allow plaintiff to ask any questions, he requested defendant and his counsel leave the premises. Summers continued making a record at his office with Se-gall and a transcriptionist they had taken to the deposition.

On November 10, 1982, defendant filed (1) a motion to quash the deposition under Supreme Court Rule 206(d), stating the suit had been settled, plaintiff knew, or should have known, the suit had been settled, and requesting reimbursement for travel expenses, attorney fees and other costs; (2) a copy of the transcription of deposition and record made November 5, 1982; (3) a motion to dismiss based upon the alleged settlement, accompanied by Segall’s affidavit stating he had full knowledge of a letter and cancelled check, copies attached, sent to plaintiff at his direction. The letter, dated October 4, 1982, addressed generally to Amoco in Des Moines, Iowa, referenced this litigation and stated that cashing the enclosed check of $48.76 would constitute full settlement of the company’s claims against him. The back of the check carried the typed legend: “Acceptance, negotiation or endorsement of this draft shall constitute a full and final release in settlement of all claims and causes of action for Acct. No. 581 — 200— 764 — 8 in the name of Mort A. Segall.”

On November 17, 1982, defendant filed a notice of hearing on his motions on December 14, 1982. On December 10, 1982, plaintiff filed a response to defendant’s motion to dismiss, asserting (1) there was no accord and satisfaction; (2) plaintiff was represented by counsel throughout the proceedings, did not agree to settle the case, and was not aware of the alleged settlement until November 5, 1982; (3) no agent of plaintiff settled the matter; (4) plaintiff receives 90,000 checks per day which are endorsement-stamped by machine automatically. Affidavits by plaintiff’s counsel and by Amoco’s remittance department supervisor, Mark Labadie, were attached. Labadie’s affidavit described the method by which checks were processed and stated any correspondence arriving at the processing center with a check is kept and filed with the business records of the company. He said the company’s records showed that on October 27, 1982, Amoco received a check in the amount of $48.76, credited to defendant’s account and processed using the described automatic processing equipment; business records showed no correspondence attached to the check; no agent or employee was aware of any restriction on the back of the check; and no agent or employee agreed to settle the claim.

On December 16, 1982, Judge Nichol conducted a hearing on the

motions. Defendant filed a motion to strike the affidavits of plaintiff’s counsel and Labadie. Defendant’s motions to dismiss and to quash the deposition were denied; plaintiff’s motion for entry of final judgment was allowed and judgment in the amount of $11,081.62 was entered. The court found plaintiff entitled to costs for the deposition and took defendant’s claim for fees in attending the deposition under advisement. Judge Nicol gave the following explanation for his ruling:

“There is no presentation justified of a finding of any bad faith on the part of the plaintiff with respect to the deposition. *** I would make a finding that there is nothing raised in the record that constitutes an unreasonable annoyance or embarrassment or oppression of the defendant in the taking of his deposition. The fact is clear that he was present at his deposition, that plaintiff’s counsel was prepared to proceed with it and he refused to permit [it] to proceed. So notwithstanding all of the allegations both in affidavit form apparently and in his deposition version that he could not possibly attend a deposition because of ill health of his wife, there he was, and he refused to let it proceed. I can only say at this point that conduct on his part constitutes less, far less than what the Court would have required of him to permit him to go forward with this case on a contested basis. *** On the basis of the record at this point I think that the Court has absolutely no other recourse but to terminate the contested portions as much as the Court may since the contested portions can not be apparently responded to by the defendant in any good faith or anything approaching it. I think that the Court cannot let it go on indefinitely and has probably let it go on far too far in this case, may have over indulged the defendant, but I guess at this point he had made his record to establish that the court has been more than generous to the defendant in giving him an opportunity to litigate this case, [than] Illinois law would require him.”

On January 4, 1983, after the filing of authorities, Judge Nicol entered a written order denying defendant’s request for fees under section 47 of “An Act concerning fees and salaries” (Ill. Rev. Stat. 1981, ch. 53, par. 65).

On January 14, 1983, defendant filed a motion to vacate the judgment, urging error in denying a protective order, denying his expenses, denying motions to quash the deposition and to dismiss, and in entry of final judgment. On February 14, 1983, plaintiff filed a response to the motion to vacate and a notice setting a hearing on defendant’s motion for February 16, 1983.

On February 16, 1983, Judge Nicol took the matter under advisement. On February 23, 1983, the court denied defendant’s motion to vacate judgment.

We first consider defendant’s argument that the court erred in denying his request for a protective order. Supreme Court Rule 201(c)(1) (87 Ill. 2d R. 201(c)(1)) provides the court may issue a protective order as justice requires. This provision is directed to the discretion of the trial court; that decision will not be overturned absent abuse of discretion. On appeal, defendant urges that his description of his wife’s illness and treatment amply documents his hardship and qualification for a protective order. We disagree.

While unfortunate circumstances may on occasion warrant issuance of a protective order and temporary delay of legal proceedings, such circumstances do not entitle a party to suspend proceedings for an indeterminate period of time. Defendant argues he sought not to challenge the court’s reasoning but to present the court with satisfactory foundation and documentation; upon review of the record, we find that defendant’s efforts fall far short — both in timeliness and substance — of that which might reasonably be expected to substantiate the need for a protective order. Although he stated on November 5, 1982, that his wife has been seriously ill since at least February 1982, defendant did not suggest this as a basis for his request for a protective order until October 25, 1982. Instead, defendant requested that plaintiff advance his travel expenses between Florida and Illinois. Defendant’s affidavit pertaining to his wife’s ill health, dated August 9, 1982, by the notary, was not brought to the court’s attention at the September 10, 1982, hearing on defendant’s motion for a protective order; the illness was not mentioned until the second motion for a protective order was filed October 25, 1982. At one point, defendant made the alternative request that plaintiff’s action be stayed permanently. Defendant never offered a time at which he would submit to a discovery deposition. Upon this record, we cannot say the trial judge abused his discretion in denying defendant’s requests for a protective order.

Defendant further argues that the court’s failure to set his motion for a protective order, filed July 1, 1982, for a hearing automatically, or rule upon it sua sponte, was error. Defendant cites no authority for this proposition and none was found. We conclude, as did Judge Nicol, that once a party files a motion for a protective order, he is required to set the motion for a hearing or suffer the consequences.

Defendant’s second argument is that the trial court erred by denying his motions to quash the deposition and dismiss the case. Under Supreme Court Rule 206(d) (87 Ill. 2d R. 206(d)), a deposition may be terminated “upon a showing that the examination is being conducted in bad faith or in any manner that unreasonably annoys, embarrasses, or oppresses the deponent or party.” In considering defendant’s motion to quash the deposition, the trial judge ruled that the matters raised by defendant did not justify a finding in his favor on either ground; we agree.

We next consider defendant’s motion to dismiss on the basis of accord and satisfaction. It has been held many times that to constitute an accord and satisfaction there must be an honest dispute between the parties, a tender with the explicit understanding of both parties that it was in full payment of all demands, and an acceptance by the creditor with the understanding that the tender is accepted in full payment. (Farmers & Mechanics Life Association v. Caine (1906), 224 Ill. 599, 79 N.E. 956; Hennecke v. Warp (1952), 347 Ill. App. 425, 107 N.E.2d 185.) We need not consider whether there was an honest dispute between the parties, whether sending the check into the stream of monthly bill payments constituted bad faith, or whether cashing a debtor’s check sent in this fashion constitutes assent as a matter of law; the trial court did not reach these questions. The court denied the motion on evidentiary grounds; accord and satisfaction was not sufficiently established. We cannot say this ruling was error. Plaintiff stated the letter purportedly sent with the check was not received; defendant’s account was credited in the amount of the check; no one at the firm was aware of any restriction on the back of the check. Defendant said the check and letter were sent at his direction but both were signed by Barbara Butts, apparently while defendant was in Florida, and defendant made no claim that Ms. Butts was there; the record contains no statement by Ms. Butts as to when and where the letter was sent, when the check was sent, or when the limitation was typed thereon.

We next consider whether the court erred by entering final judgment as a discovery sanction. Defendant purported to suspend the discovery deposition of November 5, 1982, pursuant to Supreme Court Rule 206(d). He argues that the rule does not authorize entry of judgment as an appropriate sanction for exercising the right to suspend a deposition to present a motion; and, if the motion is denied, the deposition must be resumed, with the only sanction available to the court being an order for expenses and attorney fees against the deponent. Defendant is mistaken in his view of Rule 206(d).

Under Supreme Court Rules, the trial court has broad powers to supervise the discovery process. Supreme Court Rule 219 expressly provides that if a party unreasonably refuses to comply with any provision of Rules 201 through 218, or fails to comply with any order entered under these Rules, the court, on motion, may enter appropriate sanctions — including entry of judgment against the party, dismissal of his suit with prejudice, and an award to the other party for reasonable expenses incurred because of the misconduct. (87 Ill. 2d R. 219(c).) Imposition of sanctions under Rule 219 is a matter within the discretion of the trial court; the reviewing court will uphold the decision absent an abuse of discretion. Since the trial court is in the best position to determine whether the party’s conduct amounts to deliberate or contumacious flouting of judicial authority, this discretion should be afforded considerable deference.

In addition, the nature of the decision supports respect for the ruling, as the trial judge is required to balance competing considerations: the purpose of sanctions is to accomplish the object of discovery and not to punish recalcitrant litigants (People ex rel. General Motors Corp. v. Bua (1967), 37 Ill. 2d 180, 226 N.E.2d 6); but courts have an interest in promoting the unimpeded flow of litigation, which requires that careful attention be paid to the prompt and orderly handling of discovery. Discovery for all parties will not be effective unless trial courts do not countenance violations, and unhesitatingly impose sanctions proportionate to the circumstances. (Buehler v. Whalen (1977), 70 Ill. 2d 51, 374 N.E.2d 460.) By serving notice that discovery is a serious phase of litigation and not an exercise in tactics, sanctions promote the flow of litigation and preserve the court’s role in expediting that flow.

In our view, the trial court demonstrated utmost patience with defendant’s conduct in this case. Defendant had ample opportunity to avoid the sanction of which he complains. The judge’s October 1982 order made clear the court’s displeasure with defendant’s defiance of the June 1982 order to appear for deposition on July 7. Moreover, defendant cannot argue that his actions at the scheduled deposition on November 5, 1982, were made in good faith. He appeared but refused to answer plaintiff’s questions. Had defendant any interest in complying with the orders of the trial court, he would have answered the questions of plaintiff’s counsel and thereafter concerned himself with making a record to support reimbursement for travel expenses and dismissal of the case.

Extreme disregard of the court’s authority is not to be rewarded and warrants severe sanction. Fine Arts Distributors v. Hilton Hotel Corp. (1980), 89 Ill. App. 3d 881, 412 N.E.2d 608; see also 612 North Michigan Avenue Building Corp. v. Factsystem, Inc. (1975), 25 Ill. App. 3d 529, 323 N.E.2d 493; Savitch v. Allman (1975), 25 Ill. App. 3d 864, 323 N.E.2d 435, and North Park Bus Service, Inc. v. Pastor (1976), 39 Ill. App. 3d 406, 349 N.E.2d 664 (awarding attorney fees); Lynch v. Mullenix (1977), 48 Ill. App. 3d 963, 363 N.E.2d 645 (awarding costs).

Defendant’s last argument is that the court erred by denying his request to recover fees, under statutory language pertaining to fees of witnesses (Ill. Rev. Stat. 1981, ch. 53, par. 65), for appearing at the deposition site on November 5,1982. The court found as follows:

“1. The motion should be denied because the plaintiff has been awarded a judgment against this defendant in this case that entitles the plaintiff to recover the claimed witness fee if it were paid. It would be absurd to require the plaintiff to pay it to the defendant in order to recover it from the defendant.
2. The motion should also be denied because the defendant did not attend the deposition for the purpose of answering proper questions put to him by the plaintiff’s attorney but attended for some other, self-serving purpose. The plaintiff should not have to pay fees and travel costs for any witness who fails to engage in good faith cooperation with the deposition procedure.”

The statute states “Every person attending for the purpose of having his deposition taken shall receive the same per diem and mileage as provided in this section for witnesses in circuit courts ***.” Judge Nicol found defendant did not attend for the purpose of having his deposition taken. Suffice it to say we agree with the court’s order and reasoning.

Errors raised for the first time in the reply brief are waived.

Finally, defendant asserts in his reply brief that he “has used but not abused the Supreme Court Rules and the Code of Civil Procedure.” We are constrained to comment that defendant’s conduct in this case strains reasonable interpretation as to proper use of legal processes.

Affirmed.

MILLS and MILLER, JJ., concur.


text:
    SHIRLEY LARSON et al., Plaintiffs-Appellees, v. BOARD OF EDUCATION OF BEMENT COMMUNITY SCHOOL DISTRICT NO. 5, PIATT AND CHAMPAIGN COUNTIES, Defendants-Appellees—(Julia A. Greene, Piatt County Clerk, et al., Defendants-Appellants).
    Fourth District
    No. 4—83—0254
    Opinion filed October 24, 1983.
    Hugh Finson, State’s Attorney, of Monticello, for appellant Julia A. Greene.
    Thomas J. Difanis, State’s Attorney, of Urbana (Patricia Crowley, Assistant State’s Attorney, of counsel), for appellant Dennis R. Bing.
    Thomas R. Miller, of Miller, Tracy & Braun Law Offices, P.C., of Monticello, for appellees.
   PRESIDING JUSTICE WEBBER

delivered the opinion of the court:

This is an appeal from an order of the circuit court of Piatt County which held that two ballots in a contested school tax referendum should not have been counted because they were spoiled. Defendants, the county clerks of Piatt and Champaign counties, contend that the circuit court’s ruling was error. We affirm.

The Board of Education of Bement Community Unit School District No. 5 in Piatt and Champaign counties (defendant-appellee) caused the following proposition to be placed on the ballot in the general election of November 2,1982:

“Shall the maximum annual tax rate for operations, building and maintenance purposes of Community Unit School District No. 5, Piatt and Champaign Counties, Illinois, be increased and established at .525% of the value of the taxable property in said District as equalized or assessed by the Department of Revenue instead of .375% the maximum rate otherwise applicable to the next taxes to be extended for that purpose?”

In Piatt and Champaign counties, voters were given ballot cards which listed all candidates and propositions to be voted upon. The voters used a stylus to punch the number on the ballot which corresponded with their intended vote. The ballot cards were then fed into automatic tabulating machines which counted the votes.

On November 9, 1982, the canvassing committee of the school board met and certified that 653 votes had been cast in favor of the proposition and 654 votes had been cast against it. The school board agreed to these tallies.

On November 12, 1982, a petition for a discovery recount was filed with the county clerks of Piatt and Champaign counties requesting a recount of the votes cast in one precinct in Piatt County and one precinct in Champaign County. When the discovery recount was completed, one additional “yes” vote was found in the Piatt County precinct. As a result, the vote tally became tied at 654.

On December 8, 1982, the plaintiffs filed their petition to contest the election, praying for a recount in all of the voting precincts in the school district. The board of education answered the petition and admitted all of the allegations therein. On December 23, 1982, a manual recount was ordered. Ther manual recounts were thereafter held in Piatt County on January 10, 1983, and in Champaign County on January 11,1983.

A hearing on the results of the manual recounts was held on January 27, 1983. The plaintiffs questioned the sufficiency of eight Piatt County ballots. The only witness to testify was the defendant, county clerk of Piatt County. She testified as to the condition of the questioned ballots and the procedures followed by election officials. No Champaign County ballots were questioned.

The trial court entered an order explaining the court’s ruling on each questioned ballot. The court ruled that Joint Exhibit Unity 3 — 1 and Joint Exhibit Bement 1 — A should not have been counted as “no” votes as they were spoiled. These ballots are the subject of this appeal. The court also ruled on the other six questioned ballots and ordered the Piatt county clerk to recertify the results of the election. The results then showed that the proposition had carried by a vote of 654 “yes” and 653 “no.” Accordingly, the court entered an order on March 4, 1983, declaring that the proposition to increase the tax rate had passed. The defendant county clerks filed timely notices of appeal.

At the hearing below the two ballots at issue on appeal were labeled Joint Exhibit Unity 3 — 1 and Joint Exhibit Bement 1 — A. Joint Exhibit Unity 3 — 1 consists of two ballot cards, one is the damaged original ballot and one is a duplicate. The original ballot was damaged during tabulation and an accurate duplicate was made at the counting center and initialed by the election judges there. No other labels or marks were made on either ballot. This ballot was a “no” vote on the proposition and was counted in the manual recount.

Joint Exhibit Bement 1 — A likewise consisted of two ballot cards. The damaged original in this case was marked “Damaged Ballot #1,” but the duplicate was not marked “Duplicate Damaged Ballot #1.” Both ballots were properly initialed. This ballot was also a “no” vote and was counted as such during the manual recount.

The trial court held that the failure of the election officials to mark the ballots both “Damaged Ballot” and “Duplicate Damaged Ballot” caused these ballots to be spoiled. As such, they should not have been counted as “no” votes during the manual recount. The court based its decision on section 24A — 10(b) of the Election Code (111. Rev. Stat. 1981, ch. 46, par. 24A — 10(b)), which states in pertinent part:

“The judges of election shall examine the ballots and ballot cards to determine if any is damaged or defective so that it cannot be counted by the automatic tabulating equipment. If any ballot or ballot card is damaged or defective so that it cannot properly be counted by the automatic tabulating equipment, the judges of election, consisting in each case of at least one judge of election of each of the two major political parties, shall make a true duplicate ballot of all votes on such ballot card by using the ballot label booklet of the precinct and one of the marking devices of the precinct. The original ballot or ballot card and envelope shall be clearly labeled ‘Damaged Ballot’ and the ballot or ballot card so produced ‘Duplicate Damaged Ballot,’ and each shall bear the same number which shall be placed thereon by the judges of election, commencing with number 1 and continuing consecutively for the ballots of that kind in the precinct. The judges of election shall initial the ‘Duplicate Damaged Ballot’ ballot or ballot cards, and shall place them in the box for return of the ballots. The ‘Damaged Ballot’ ballots or ballot cards and their envelopes shall be placed in the ‘Duplicated Ballots’ envelope.”

The trial court viewed these provisions as mandatory and since they were not complied with here, the ballots were spoiled. The defendants argue, on the other hand, that this statutory language is merely directory and that as long as the duplicate ballots can be matched to the original ballots with certainty, no labeling should be required.

The defendants’ argument is contrary to the implicit purpose of this statute. The legislature intended to insure certainty in the matching of duplicate ballots with the damaged original ballots. If the statute’s requirements are followed, questions as to the certainty or trustworthiness of the duplicate ballot need never be reached. If the requirements are complied with, propriety is presumed. Moreover, the language of the statute is mandatory and quite clear. If there were to be exceptions or if the legislature had intended that these procedures be merely directory, it would seem that language to that effect would appear somewhere in the Election Code.

We agree with the circuit court that these statutory requirements substantially contribute to the integrity of the election process. These requirements are a reasonable means of eliminating opportunities for election fraud and uncertainty. It is true in this case that two voters have been disenfranchised; however, the important State interest in the integrity of the election process demands that election officials comply with these provisions. Valid, mandatory statutory provisions that contribute substantially to the integrity of the election process must be enforced by the courts. Craig v. Peterson (1968), 39 Ill. 2d 191, 233 N.E.2d 345.

Accordingly, the judgment of the circuit court of Piatt County is affirmed.

Affirmed.

GREEN and MILLER, JJ., concur.


author: JUSTICE GREEN

text:
    PAUL F. CUNNINGHAM, Plaintiff-Appellant, v. GARRETT HASBARGEN, d/b/a Garrett’s Club, Defendant-Appellee—(Carl Edward Simpson, Defendant).
    Fourth District
    No. 4—83—0382
    Opinion filed October 18, 1983.
    Laurence W. Grabb and Diane L. Yohnka, both of Ryan, Grabb, Cini & Bennett, of Mattoon, for appellant.
    Mark E. Jackson, of Samuels, Miller, Schroeder, Jackson & Sly, of Decatur, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

The decision in this case depends upon the application of then section 46(2) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 46(2)), now section 2 — 616(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 616(b)). This section states in part:

“The cause of action, cross demand or defense set up in any amended pleading shall not be barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if the time prescribed or limited had not expired when the original pleading was filed, and if it shall appear from the original and amended pleadings that the cause of action asserted, or the defense or cross claim interposed in the amended pleading grew out of the same transaction or occurrence set up in the original pleading ***.” (Emphasis added.)

On April 20, 1979, plaintiff, Paul E Cunningham, filed suit in the circuit court of Coles County against defendants, Garrett Hasbargen, d/b/a Garrett’s Club, and Carl Edward Simpson, to recover damages for personal injuries resulting from an altercation between plaintiff and defendant Simpson • in a tavern operated by Hasbargen in Ashmore in Coles County on April 21, 1978. Count I was against Hasbargen under certain provisions of the Dramshop Act (Ill. Rev. Stat. 1977, ch. 43, par. 135). It charged Hasbargen with selling liquor to Simpson causing his intoxication and alleged plaintiff was injured by Simpson, an intoxicated person. Counts II and III charged Simpson with a civil battery. On April 26, 1982, plaintiff filed a motion for leave to file an amendment to the complaint adding additional counts charging Hasbargen with negligence and wilful and wanton conduct in not protecting plaintiff from Simpson. On May 2, 1983, the circuit court entered an order refusing to reconsider its denial of plaintiff’s motion to amend and made a finding pursuant to Supreme Court Rule 304(a) (87 Ill. 2d R. 304(a)). Plaintiff appeals.

Plaintiff’s motion to amend the complaint was filed more than four years after his cause of action allegedly arose. Thus, the statutory two-year limitation period for bringing actions for personal injuries (Ill. Rev. Stat. 1979, ch. 83, par. 15, now Ill. Rev. Stat. 1981, ch. 110, par. 13 — 202) had elapsed except to the extent that an “action brought” or a “right asserted” by the additional counts met the criteria of section 46(2). The trial court concluded that the criteria were not met and denied the motion. Plaintiff maintains the provisions of section 46(2) were satisfied and cites various cases where amendment was held to be proper.

The most recent nearly analogous supreme court case is Halberstadt v. Harris Trust & Savings Bank (1973), 55 Ill. 2d 121, 302 N.E.2d 64. There, a widow had filed suit for the death of her husband charging the defendants who were a building owner, a building manager, and a manager’s employee with wilful violations of the Structural Work Act (Ill. Rev. Stat. 1965, ch. 48, par. 60 et seq.) which allegedly caused her husband’s death when he fell from a high building while washing windows. A denial by the trial court to allow her, in her capacity as administrator, to file amended counts for wrongful death (Ill. Rev. Stat. 1965, ch. 70, par. 1) well after the time for bringing such an action had expired was held to be reversible error. In describing the provisions of then section 46(2) of the Civil Practice Act with particular reference to the words “occurrence” and “transaction,” the court stated:

“The aforementioned provisions were designed to insure fairness to the litigants rather than unduly enhance the technical considerations of common-law pleading. *** [T]he policy attendant to statutes of limitation is to provide defendant a sufficient opportunity to investigate the factors upon which his liability may be based while such evidence is still ascertainable. *** In the present case it is readily apparent that the cause of action set forth in the second amended complaint ‘grew out of the same transaction or occurrence set up on the original pleading,’ which was timely filed. Moreover, in all the pleadings the basis of defendants’ liability was the alleged defective nature of the work area utilized by deceased prior to his fall. Thus defendants were informed of circumstances upon which they might predicate a defense.” 55 Ill. 2d 121, 124-25, 302 N.E.2d 64, 66.

As in Halberstadt, an amendment to an action under the Structural Work Act to include counts charging negligence filed tardily was allowed in Simmons v. Hendricks (1965), 32 Ill. 2d 489, 207 N.E.2d 440. Other cases in tort actions where amended counts were held to meet the requirements of then section 46(2) include Pleasant v. Certified Grocers of Illinois, Inc. (1976), 39 Ill. App. 3d 83, 350 N.E.2d 65, and Krieger v. Village of Carpentersville (1972), 8 Ill. App. 3d 243, 289 N.E.2d 481. In O’Leary v. Siegel (1970), 120 Ill. App. 2d 12, 256 N.E.2d 127, a new count charging negligence was also held to have been properly filed under then section 46(2) in a suit where the original charges were brought under the Structural Work Act. The appellate court noted that in Geneva Construction Co. v. Martin Transfer & Storage Co. (1954), 4 Ill. 2d 273, 122 N.E.2d 540, the supreme court had construed the statutory phrase “same occurrence” to mean the conduct specified. This analysis places principal focus upon the degree of similarity between the conduct charged of the defendant in the original counts and that charged in the amended counts.

In Smetzer v. County of La Salle (1977), 53 Ill. App. 3d 741, 368 N.E.2d 933, relied upon by defendant, the defendant county had originally been charged with negligence in placing a slippery substance on a roadway causing plaintiff’s automobile to skid out of control and to collide with another vehicle. After concluding her proof at trial, plaintiff moved for leave to amend her complaint to charge defendants with failure to cut weeds and brush which obscured plaintiff’s vision at the intersection where the collision took place. The trial court’s denial of the motion on the basis that the statute of limitations had run was held to be proper. The court concluded that the alleged failure on the part of the defendant to cut the weeds concerned a different occurrence than its alleged negligence in placing a slick substance on the road. Although focusing its decision largely on the application of section 46(2), the appellate court noted that a trial court has discretion in ruling upon a motion to amend the complaint made late in trial.

Here, the specific conduct alleged under the Dramshop Act was that (1>) Hasbargen operated a tavern and sold liquor to Simpson which made him intoxicated, and (2) plaintiff was injured by Simpson who had thus become intoxicated. The amendment alleged Hasbargen (1) failed to remove Simpson when he became intoxicated, (2) failed to control him, (3) failed to warn patrons of the danger of injury from Simpson, (4) failed to protect patrons from Simpson, and (5) failed to prevent Simpson from entering the tavern. The amendment also alleged that Hasbargen sold liquor to Simpson knowing that he was intoxicated. That was not grounds for recovery because the Dramshop Act is the sole remedy for the sale of intoxicants. Graham v. General U.S. Grant Post No. 2665, V.F.W. (1969), 43 Ill. 2d 1, 248 N.E.2d 657.

In a broad sense, the conduct charged of Hasbargen in count I and in the proposed amendment clearly involved the same occurrence. That occurrence consisted of Simpson entering Hasbargen’s place of business, purchasing liquor, becoming intoxicated, and battering plaintiff. In preparing his Dramshop defense, Hasbargen would have investigated the evidence of whether Simpson did each of those things. He would also have investigated for evidence of whether plaintiff was guilty of complicity. This investigation would also have informed him of evidence concerning the factors involved in the proposed amendment. He would not have been put at a disadvantage by the late filing of the amendment.

The emphasis placed by O’Leary and Geneva Construction Co. upon the similarity of conduct in the existing complaint and the proposed amendment creates the closest question in this case. In Smetzer, the originally alleged act of commission in placing a slick substance on the road and the subsequently alleged act of omission in not cutting the weeds involved different periods of time. Here, the allegations of the original complaint concerning Hasbargen’s act of commission in selling Simpson liquor and the allegations in the proposed amendment that he committed acts of omission in failing to protect patrons, referred to conduct occurring in a short space of time. In Halberstadt, the court deemed significant that the basis of liability in both pleadings was the defective nature of the work area. Here, the basis of liability in both pleadings is the operation of the tavern on the night in question.

The relationship between the conduct involved in a Structural Work Act violation and a common law negligence action is closer than that between the conduct involved in a Dramshop action for a personal injury inflicted by an intoxicated person and a common law negligence action concerning a tavern keeper’s failure to protect the injured party from the injury by the intoxicated person. Nevertheless, we conclude that there was enough similarity between the conduct alleged under the circumstances here to bring the proposed amendment within the purview of the former section 46(2) of the Civil Practice Act.

Although the question is close, the trial court should have allowed the amendment and it committed reversible error in refusing to do so. Accordingly, we reverse and remand to the circuit court of Coles County for further proceedings.

Reversed and remanded.

WEBBER, P.J., and MILLER, J., concur.


author: JUSTICE "VAN DEUSEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SCOTT ALLEN BERRY, Defendant-Appellant.
    Second District
    No. 82—679
    Opinion filed October 24, 1983.
    Robert Slattery, of Freeport, for appellant.
    Charles R. Hartman, State’s Attorney, of Freeport (Phyllis J. Perko, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE "VAN DEUSEN

delivered the opinion of the court:

Defendant, Scott Allen Berry, appeals his conviction for unlawful possession of cannabis from 2.5 grams to 10 grams (Ill. Rev. Stat. 1981, ch. 56%, par. 704(b)) and also the trial court’s refusal to consider defendant for treatment under the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1981, ch. 91%, par. 120.1 et seq.). On this appeal, the State confesses error on the cannabis conviction and concedes that it failed to prove beyond a reasonable doubt that the substance found in defendant’s possession was cannabis. We are satisfied that the State is correct in its concession and therefore that conviction is vacated. (See People v. Park (1978), 72 Ill. 2d 203.) The only controverted issue remaining is whether the trial court properly declined to consider, as an alternative to sentencing defendant by the usual sentencing procedures, a disposition under the Dangerous Drug Abuse Act (hereinafter referred to as the Act).

Defendant’s initial contention is that he was eligible for treatment under the Act but the trial judge failed to acknowledge his eligibility. Further, defendant asserts that even if the trial court did recognize his eligibility, there is insufficient evidence on the record to prove that the Act’s drug program was seriously considered as an alternative to ordinary criminal sanctions.

A candidate’s eligibility for treatment under the Act is governed by section 8 (Ill. Rev. Stat. 1981, ch. 91%, par. 120.8). Freedom from the disqualifications of this provision is a necessary prerequisite to judicial consideration of the Act as a possible disposition for a particular defendant. (People v. Phillips (1977), 66 Ill. 2d 412, 418; People v. Blair (1981), 102 Ill. App. 3d 1018, 1024-25; People v. Young (1977), 56 Ill. App. 3d 106, 109.) In the immediate case, the State argues specifically that defendant Berry did not comply with section 8(e), which disqualifies a candidate who is currently on probation and does not have the consent of his probation authorities for treatment under the Act. At the time of his sentencing, defendant Berry was serving probation on 10 respective counts of burglary in two counties. The trial court record reveals that, in response to a direct inquiry by the trial judge, defendant’s counsel admitted to not having procured the necessary consent of the proper probation officers.

Relying upon section 10 of the Act (Ill. Rev. Stat. 1981, ch. 91%, par. 120.10), which addresses application of the Act to convicted criminal defendants, defendant Berry argues that he need not show himself qualified for probation before the court considers an alternative disposition under the Act. (See People v. Robinson (1973), 12 Ill. App. 3d 291.) While defendant may in fact be correct in his assertion, it is immaterial to the issue in controversy. Section 10 is expressly triggered only when the prerequisites of section 8 have been satisfied. Whether defendant is qualified for the probationary status which accompanies treatment under section 10 of the Act is a separate inquiry which we need not reach. The clear import of section 10 is that even convicted candidates must first liberate themselves from the disqualifications of section 8. Since defendant Berry was currently on probation at the time of his sentencing, he fell within the purview of section 8(e), and the consent of his existing probation authorities was necessary. His eligibility for future probationary status under section 10 is a subsequent inquiry which need not be addressed since defendant did not satisfy section 8.

As a practical matter, the issue in chief is limited to whether the defendant or the State had the burden of proof on section 8(e). In the Illinois Supreme Court case of People v. Phillips (1977), 66 Ill. 2d 412, 414, the court enunciated the rule that if the defendant was a probationer, he must affirmatively show his probation officers have consented to his treatment under the Act. A number of subsequent appellate court cases have more emphatically stated the Phillips rule, placing the burden of proof on the defendant to affirmatively show the consent of his probation officers. (People v. Blair (1981), 102 Ill. App. 3d 1018, 1025; People v. York (1980), 87 Ill. App. 3d 1026, 1031-32; People v. Young (1977), 56 Ill. App. 3d 106, 109; People v. Morgan (1977), 50 Ill. App. 3d 962, 963-64; People v. Ward (1977), 55 Ill. App. 3d 878, 882.) In rebuttal, the defendant suggests that the Phillips rule can be narrowed to situations where the Act candidate is not yet a convicted defendant. (See People v. Ruffin (1977), 46 Ill. App. 3d 448.) However, there is little support for this view, and we believe it unnecessarily restricts the broad language in Phillips and its progeny. See People v. York (1980), 87 Ill. App. 3d 1026, 1030-32; People v. Young (1977), 56 Ill. App. 3d 106, 109-10.

Since the defendant in the present case admitted to not having procured the consent of the necessary authorities, he was ineligible for consideration as a candidate under the Act.

Because defendant was deemed ineligible for treatment under the Act, it necessarily follows that the trial court properly refused to exercise its discretion regarding the Act as an alternative disposition for defendant. Obviously, it is unnecessary for a court to consider whether a defendant should be sentenced according to standard proceedings or admitted to the Dangerous Drug Abuse Act program if that defendant is ineligible for the latter option. Indeed, it has specifically been held that a court is prohibited from making such a discretionary determination in a case where defendant has failed to qualify for the Act under section 8(e). (People v. Young (1977), 56 Ill. App. 3d 106, 109; People v. Morgan (1977), 50 Ill. App. 3d 962, 964-65.) The trial court was correct in not considering defendant for the Act alternative and properly sentenced him under normal sentencing procedures.

Defendant’s conviction and sentence for unlawful possession of cannabis from 2.5 to 10 grams is reversed. His convictions and sentences for residential burglary and theft are affirmed.

Affirmed in part, reversed in part.

LINDBERG and REINHARD, JJ., concur.


author: JUSTICE ALLOY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SCOTT CALDWELL, Defendant-Appellant.
    Third District
    No. 3—83—0133
    Opinion filed October 31, 1983.

      Robert Agostinelli, of State Appellate Defender’s Office, of Ottawa, for appellant.
    James T. Teros, State’s Attorney, of Rock Island (John X. Breslin and Gerry R. Arnold, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE ALLOY

delivered the opinion of the court:

This case presents the question of whether a defendant who is ordered to undergo treatment pursuant to the provisions of the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1981, ch. 9IV2, pars. 120.8, 120.9) may also be ordered to pay restitution and court costs.

The Dangerous Drug Abuse Act provides, inter alia, a defendant addict charged with a crime to elect treatment for his addiction under a supervised program instead of prosecution. (Ill. Rev. Stat. 1981, ch. 91V2, par. 120.8.) Not all defendants are eligible under this Act. Among those who are not are those charged with a violation of the Cannabis Control Act (Ill. Rev. Stat. 1981, ch. 56V2, pars. 701 through 719) and the Illinois Controlled Substances Act (Ill. Rev. Stat. 1981, ch. 56V2, pars. 1100 through 1603). If the court determines that a defendant is eligible for treatment, then the pending criminal proceeding is continued, without final disposition, during the period of the treatment program. (Ill. Rev. Stat. 1981, ch. 9IV2, par. 120.9.) Upon successful completion of the treatment program, the charge against the defendant must be dismissed. (People v. Moore (1982), 108 Ill. App. 3d 260, 439 N.E.2d 98.) The question which we must decide is whether the trial judge may impose additional conditions, namely the payment of court costs and restitution, at the time he orders treatment.

Prior to resolving this question it is first necessary to touch briefly on the facts. The defendant, Scott Caldwell, was charged by information in the circuit court of Rock Island County with having committed the offense of residential burglary on June 6, 1982, in violation of section 19 — 3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 3). On November 1, 1982, the defendant filed a motion to elect treatment pursuant to the Dangerous Drug Abuse Act, alleging that he was an addict. In connection with his motion, the defendant appeared before the court on November 9, 1982, and waived his right to a speedy trial and to a trial by jury. On December 12, 1982, the court heard testimony as to the dual marijuana and alcohol addiction of the defendant.

On January 12, 1982, after hearing stipulated evidence, the court found the defendant to be guilty of the offense of residential burglary as charged and placed him on a term of supervision for treatment pursuant to section 9 of the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1981, ch. 9IV2, par. 120.9). Over the objection of the defendant, the court ordered him to pay court costs and restitution in the amount of $437.96 within one year. The order stated that the cause was to be continued without final disposition pending completion of the treatment program.

On appeal before this court, the defendant argues that the general sentencing provisions of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, .par. 1005 — 5—3 et seq.) may not be applied to a defendant who has been placed on supervision pursuant to section 9 of the Dangerous Drug Abuse Act. The defendant’s position is that the Dangerous Drug Abuse Act must explicitly authorize the imposition of court costs and restitution; otherwise, the court lacks the authority to enter such an order. Alternatively, the defendant argues that the amount of restitution was excessive.

In support of his position, the defendant relies heavily on People v. DuMontelle (1978), 71 Ill. 2d 157, 374 N.E.2d 205, in which the supreme court determined that a comparable provision of the Cannabis Control Act (Ill. Rev. Stat. 1973, ch. SGVa, par. 710) did not authorize the imposition of a fine on the defendant because “section 10 treatment is in the nature of a continuance, and does not amount to a conviction under the Unified Code of Corrections.” (People v. DuMontelle (1978), 71 Ill. 2d 157, 164.) The statute in question in DuMontelle authorized the court to impose “reasonable terms and conditions” of probation and the court reasoned that, since a fine is a punitive measure, it would be incongruous to impose a fine as a condition of probation in light of the “general lenient purpose” of the Act. (71 Ill. 2d 157, 164-65, 374 N.E.2d 205, 208.) The court reached the same conclusion with regard to the imposition of court costs, reasoning that such costs were not authorized by the Cannabis Control Act and that a conviction under the Unified Code of Corrections is a necessary prerequisite to activate the court’s authority to impose such costs. (Ill. Rev. Stat. 1973, ch. 38, par. 180 — 3.) In each instance, the court based its decision on the premise that “dispositions imposed by the courts must be authorized by law.” (People v. DuMontelle (1978), 71 Ill. 2d 157, 164, 374 N.E.2d 205, 208; People v. Breen (1976), 62 Ill. 2d 323, 342 N.E.2d 31.) The same reasoning has been applied to the Illinois Controlled Substances Act (Ill. Rev. Stat. 1975, ch. 56V2, par. 1410) with the same result. (People v. Harris (1979), 69 Ill. App. 3d 118, 387 N.E.2d 33.) The defendant thus concludes that, since final judgment was not entered and further proceedings were deferred, DuMontelle requires this court to vacate the order of court costs and restitution.

In reply, the State argues that, after DuMontelle, the General Assembly amended the Cannabis Control Act and the Illinois Controlled Substances Act to expressly allow for the assessment of fines and costs. (Ill. Rev. Stat. 1981, ch. pars. 710(c)(2), 1410(c)(2); prospective application only, Roth v. Yackley (1979), 77 Ill. 2d 423, 396 N.E.2d 520.) The State reasons that these amendments made it clear that, despite the “general lenient purpose,” fines and costs may properly be assessed against such defendants and that the same is also true with respect to the Dangerous Drug Abuse Act. Therefore, by analogy, the intent of the General Assembly should be applied to the Dangerous Drug Abuse Act also.

The State further argues that the trial court should be “permitted to consider” the conditions enumerated in section 5 — 6—3.1 of the Unified Code of Corrections pertaining to supervision (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 6—3.1), in determining which conditions to impose under section 9 because the legislative intent underlying both section 9 and section 5 — 6—3.1 is the same. The State, however, fails to point us to any authority in support of its theory.

We agree with the defendant that the supreme court’s reasoning in DuMontelle is equally applicable to the statute in the instant case. Both the Dangerous Drug Abuse Act and the Cannabis Control Act are directed at providing a treatment option to those charged with a crime. The difference is that the latter is addressed to defendants charged with crimes involving drugs while the former is not.

Although neither party directed our attention to it, we find the supreme court’s opinion in People v. Tesehner to be decisive. In that case, the court stated that “[f]rom the express wording of the statute, it is apparent that the legislature intended treatment under the Dangerous Drug Abuse Act to be an alternative to the normal ambit of prosecution or sentencing under the Unified Code of Corrections.” (Emphasis added.) (People v. Teschner (1980), 81 Ill. 2d 187, 191, 407 N.E.2d 49, 51.) The court then went on to observe:

“This court, on several occasions, has reviewed the Dangerous Drug Abuse Act and noted the differences between it and the Unified Code of Corrections. *** The treatment under the Act, unlike a sentence, is not a consequence of defendant’s guilt. It is instead an alternative to a criminal conviction and the regular sentencing alternatives available under the Unified Code of Corrections.” (Emphasis added.) (81 Ill. 2d 187, 192, 407 N.E.2d 49, 52.)

The court concluded that the provisions of the Unified Code of Corrections should not be superimposed upon the provisions of the Dangerous Drug Abuse Act.

We find Teschner to be determinative. There being no statutory authorization within the Dangerous Drug Abuse Act for the court’s imposition of court costs and restitution, we find that that part of the court’s order must be vacated. It is therefore unnecessary to discuss the defendant’s alternate issue.

Order vacated in part.

STOUDER, P.J., and HEIPLE, J., concur.