author: PRESIDING JUSTICE MEJDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MALCOLM TURNER, Defendant-Appellant.
    First District (5th Division)
    No. 83—1977
    Opinion filed September 21, 1984.

      Jerome Rotenberg, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and John C. Legutki, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MEJDA

delivered the opinion of the court:

Defendant, Malcolm Turner, was charged with attempted robbery (Ill. Rev. Stat. 1981, ch. 38, par. 8—4(a)), robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18—1), and felony murder (Ill. Rev. Stat. 1981, ch. 38, par. 9—1(a)(3)). The jury found him guilty of all three charges. The court held that the charges merged and imposed a sentence of 22 years for murder. Defendant appeals.

The following issues are presented: (1) whether the trial court erred in denying the defendant’s pretrial motion to dismiss the indictment; (2) whether the trial court erred in denying defendant’s motion for a directed verdict at the close of the State’s case; (3) whether the evidence failed to establish the cause of death beyond a reasonable doubt; (4) whether the introduction of testimony of an assistant State’s Attorney recommending that charges be brought against the defendant was error; and (5) whether statements made by the prosecutor during closing argument were prejudicially improper. We reverse and remand.

At the trial, eyewitnesses Rose Casares and John Haepp testified that on April 17, 1981, at about 1:30 p.m., they were traveling in their van near 47th and Halsted streets. They observed defendant and another man, Michael Avery, on the sidewalk at that location holding an older man, George Deberaux, between them, beating him about the face and chest. Upon seeing this, they stopped their van and Haepp immediately jumped out with Casares following close behind. Haepp began yelling at the two men to leave Deberaux alone. By this time, Deberaux had either jumped or been pushed to the street level, which was 5V2 to 6 feet below the sidewalk. Soon after, the two men fled the scene. Neither Casares nor Haepp saw the two men take anything from the older man. Although he chased the two men as they fled, Haepp was unable to catch them. Haepp and Casares testified that after either being pushed or having jumped to the street level, Deberaux took a few steps and then fell. Officer Castenada, the first police officer on the scene, stated that Deberaux was bruised, bleeding, and unconscious. Deberaux died later that day.

Just prior to this incident, defendant and Avery stopped along 47th Street near Halsted to talk with William Rake, an acquaintance of the defendant’s. Rake testified that Avery said, “I know that old man over there has money.” Defendant replied, “Mike, you are going to get a nigger put in jail.” After they crossed the street and approached Deberaux, Rake saw both men pushing and punching him.

Later that same afternoon, police questioned the defendant about the incident. Officer Anderson testified that the defendant told him that he robbed Deberaux but did not beat him. At trial defendant denied that he told the officer that he robbed Deberaux. He instead testified that he told Detective Bedran that he had followed Avery with the intention of stopping him from robbing Deberaux. Defendant testified that Avery asked Deberaux for a quarter, which was given to him. When Avery asked for a quarter for the defendant, defendant stated that he did not want any money. At this point, Avery began pushing and shoving Deberaux. Defendant maintained that he stepped in between the two to break them apart. During the scuffle, defendant stated that Avery took some bills from Deberaux’ pocket. After Deberaux fell to the street level below, defendant stated that he ran after Avery to persuade him to return to the scene and give the money back.

An assistant State’s Attorney, Michael Ditore, was called as a witness by the State. He testified that in April of 1981 he was assigned to the felony review unit. Detective Bedran telephoned Ditore on the day in question concerning the Deberaux incident. Ditore testified that he had conversations with the police, "witnesses, and the defendant that day. Defendant related the facts of the incident to Ditore, including his explanation that he accompanied Avery in an attempt to prevent him from robbing Deberaux. Ditore testified that he did not recommend that charges be brought that day, but when the results of an autopsy performed on Deberaux were released the following day, he then recommended placing charges.

Dr. Robert Stein, chief medical examiner of Cook County, testified that his external examination of the victim’s body revealed abrasions and contusions in the left eye area. Abrasions and contusions were also found around the right forearm. These injuries, Dr. Stein indicated, could have been caused by a blunt object. During the internal examination he also discovered that Deberaux suffered from heart disease. Dr. Stein stated that in his opinion the victim died as a result of blunt trauma in association with arteriosclerotic heart disease. If the victim had not received this type of trauma, he would have lived.

The jury found defendant guilty on charges of attempted robbery, robbery, and felony murder. The court imposed a sentence of 22 years’ imprisonment. Defendant appeals.

Opinion

The first issue raised is whether the trial court erred in denying the defendant’s pretrial motion to dismiss the indictment. Defendant maintains that the indictment was based partly on the perjured testimony of Officer Bedran that defendant had admitted his participation in the crimes charged. The appellant has the burden of presenting a sufficiently complete record of the earlier proceedings to support a claim of error, and any doubts occasioned by the incompleteness of the record are resolved against the appellant. (Foutch v. O’Bryant (1984), 99 Ill. 2d 389, 391-92, 459 N.E.2d 958.) Because the record contains no transcript of the proceedings involved, we cannot say the trial court erred in denying the motion.

We next consider the second issue defendant raises regarding whether the trial court erred in denying his motion for a directed verdict at the close of the State’s case. The State urges that the defendant waived any error in the trial court’s ruling by presenting evidence after the motion was overruled. An election by the defendant to present evidence after a motion for directed verdict has been overruled waives any error in the trial court’s ruling on the motion (People v. Curtis (1967), 90 Ill. App. 2d 231, 232, 232 N.E.2d 457), except when the defendant renews the motion at the close of all the evidence. (LeMay v. Jenkins (1955), 6 Ill. App. 2d 57, 59, 126 N.E.2d 524.) Here, the defendant moved for a directed verdict at the close of all the evidence properly preserving this issue for review.

The defendant argues that the motion should have been granted because the State’s evidence, except for the oral admissions of the defendant, failed to establish that a robbery occurred. Without these oral statements, the defendant contends there was insufficient evidence to establish the corpus delicti that a robbery had occurred. We find defendant’s argument unpersuasive. A conviction based on a confession will be upheld if independent evidence (1) shows that a crime did occur, although the evidence need not establish that fact beyond a reasonable doubt, and (2) corroborates or bolsters the circumstances of the confession. (People v. Willingham (1982), 89 Ill. 2d 352, 360-61, 432 N.E.2d 861.) If this test is satisfied, both the independent evidence and the confession may be considered in determining whether the corpus delicti is sufficiently proved. (89 Ill. 2d 352, 360, 432 N.E.2d 861.) In the instant case there was independent evidence that before Deberaux died defendant was beating him about the face after Avery had asked him for money. This evidence tends to prove that a crime occurred and was consistent with defendant’s statement that he had robbed Deberaux, although it did not by itself establish the corpus delicti. (See also People v. Barkenlau (1982), 105 Ill. App. 3d 785, 434 N.E.2d 856.) We find that the corpus delicti was established. Thus, defendant’s argument provides no basis for granting a directed verdict.

When a motion for a directed verdict is made at the close of all the evidence, the proper standard on review is whether a verdict of not guilty should be granted where all the evidence, viewed in a light most favorable to the State, fails to establish defendant’s guilt beyond a reasonable doubt. (People v. Easter (1981), 102 Ill. App. 3d 974, 981, 430 N.E.2d 612.) Our review of the evidence presented on each charge reveals that, construing the evidence most favorably to the State, the State established defendant’s guilt beyond a reasonable doubt.

A person commits an attempted robbery when, with intent to commit the specific offense of robbery, he does any act which constitutes a substantial step toward the commission of that offense. (Ill. Rev. Stat. 1981, ch. 38, par. 8—4(a).) Intent may be inferred from the acts of the accused and the surrounding circumstances. (People v. Cheatem (1976), 35 Ill. App. 3d 414, 416, 342 N.E.2d 410.) Construing the evidence most strongly in favor of the State shows that William Rake spoke with the defendant and Avery immediately preceding this incident. Avery saw the victim and stated that he knew the older man had money. Moments later defendant and Avery crossed the street and approached the victim. In addition to Rake, eyewitnesses Casares and Haepp indicated that they saw defendant and Avery beating the victim. After this beating, the victim was either pushed or jumped to the street level below, where he fell to the pavement unconscious after taking a few steps. Defendant and Avery then fled from the scene. When Officer Anderson went to defendant’s home after the incident, defendant admitted that he had robbed the victim, but did not beat him. We find these facts sufficient to infer the necessary intent. Defendant’s participation in the physical abuse of the victim constituted a substantial step toward the commission of a robbery.

A robbery occurs when a person takes property from the person or presence of another by the use of force or by threatening the imminent use of force. (Ill. Rev. Stat. 1981, ch. 38, par. 18—1.) Defendant admitted that he robbed the victim shortly after the incident. Although defendant’s testimony conflicted with his initial confession to the robbery, eyewitnesses observed him and Avery on either side of Deberaux beating him. Based on these eyewitness accounts, the element of the use of force was established.

A person who kills another individual without lawful justification commits murder if the conduct which causes the death of the individual occurs during an attempt to commit or the commission of a forcible felony other than voluntary manslaughter. (Ill. Rev. Stat. 1983, ch. 38, par. 9—1(a)(3).) When the defendant is charged with murder, the State must prove both the fact of death and the criminal agency causing death. (People v. Martin (1983), 112 Ill. App. 3d 486, 499, 445 N.E.2d 795.) Eyewitness accounts attributed the beating of the victim to the defendant and Avery. Dr. Stein testified that Deberaux died as a result of blunt trauma in association with arteriosclerotic heart disease. He further stated that the victim’s death could not have been caused by either condition alone. We conclude that all of the evidence viewed most favorably to the State establishes defendant’s guilt beyond a reasonable doubt. Thus, the trial court did not err in denying defendant’s motion for a directed verdict.

The third issue defendant raises is whether the evidence failed to establish the cause of death beyond a reasonable doubt. The State shoulders the burden of proving all the material and essential facts constituting the crime. (People v. Weinstein (1966), 35 Ill. 2d 467, 470, 220 N.E.2d 432.) When the defendant is charged with murder, the State must prove both the fact of death and the criminal agency causing death. (People v. Martin (1983), 112 Ill. App. 3d 486, 499, 445 N.E.2d 795.) The State is not required to prove that defendant’s acts constituted the sole and immediate cause of death. (112 Ill. App. 3d 486, 499, 445 N.E.2d 795.) If the State establishes that those acts were a contributory cause and the death did not result from a source independent of those acts, that is sufficient. People v. Schreiber (1982), 104 Ill. App. 3d 618, 625, 432 N.E.2d 1316, cert, denied (1983), 459 U.S. 1214, 75 L. Ed. 2d 452, 103 S. Ct. 1214.

In this case, the State met its burden. Dr. Stein, the medical examiner, testified that Deberaux died as a result of blunt trauma, that is, injury produced by a blunt object rather than a sharp one, in association with arteriosclerotic heart disease. He also stated that either the heart disease or the blunt trauma alone could not have caused the death. We think this evidence is sufficient to establish criminal agency. The jury implicitly found that the beating caused Deberaux’ death, and we cannot say this finding was unsupported by the evidence. Thus, the State proved beyond a reasonable doubt that the victim’s death was the result of defendant’s criminal acts.

Defendant cites People v. Benson (1960), 19 Ill. 2d 50, 166 N.E.2d 80, in support of his argument that the evidence is insufficient to establish criminal responsibility for the victim’s death. Benson is distinguishable from the instant case, because in Benson there was no evidence explaining how the defendant’s acts could have caused the victim’s physical conditions. Nor was there evidence that any of these conditions resulted from trauma. In this case, there was evidence presented on both of these points.

The fourth issue raised is whether the introduction of the testimony of an assistant State’s Attorney recommending that charges be brought against the defendant was error. The State argues that Michael Ditore’s testimony simply outlined the steps taken leading to the recommendation of charges. We find no merit in this contention. A prosecutor’s testimony that he recommended that charges be placed against a defendant after discussing the facts of the case with the police was held prejudicial error requiring a new trial in People v. Blissit (1973), 12 Ill. App. 3d 551, 299 N.E.2d 562. The prejudicial impact of Ditore’s testimony is greater in the instant case because he testified not only that he spoke with police prior to recommending charges but also with several witnesses and the defendant. Over defendant’s objection, Ditore stated that he waited to recommend charges until the medical examiner released the results of an autopsy performed on the victim. The prejudicial effect of this testimony requires that the case be remanded for a new trial.

Defendant’s fifth and last contention is that statements made by the prosecutor during closing argument were prejudicially improper. Closing arguments which reflect unfavorably on the accused are not improper if based upon competent evidence. (People v. Gillarm (1976), 41 Ill. App. 3d 174, 176-77, 353 N.E.2d 280.) If improper, a prosecutor’s remarks are not reversible error unless they result in substantial prejudice to the defendant. (People v. De Savieu (1973), 11 Ill. App. 3d 529, 535, 297 N.E.2d 336; People v. Phillips (1970), 126 Ill. App. 2d 179, 184, 261 N.E.2d 469.) While we do not condone ill-advised closing arguments, we find only one of the objected-to remarks sufficiently prejudicial to have denied the defendant a fair trial. During closing argument, the prosecutor stated, “The fact Mr. Ditore told you that Malcolm Turner was [not] charged with the murder or anything until April 18th I think has significance. * * * I think it showed we don’t just charge people lightly with crimes. We have to get in the case of a homicide a cause of death from the medical examiner’s office. And we are not going to charge people with crimes, like the crime of murder, until we have that evidence. *** I submit to you, ladies and gentlemen, that had the results of the autopsy or post-mortem examination was [sic] different we wouldn’t be here today.”

A prosecutor’s statements implying that charges would not have been placed against the defendant unless the prosecutor thought he was guilty are improper and prejudicial error. (People v. Fuerback (1966), 66 Ill. App. 2d 452, 456, 214 N.E.2d 330.) In light of the fact that it was highly prejudicial for Ditore to testify regarding the placing of charges against the defendant after discussing the case with police, witnesses, the defendant, and the medical examiner, the prejudice to the defendant was further compounded by the prosecutor’s reference to this testimony in closing argument. We are of the opinion that the outcome may have been otherwise had the State omitted these remarks and their inclusion constituted reversible error.

For the foregoing reasons the judgment of conviction is reversed, and the cause is remanded for a new trial.

Reversed and remanded.

LORENZ and SULLIVAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE UNVERZAGT

license: Public Domain

text:
    WILLIAM JONES, Ex’r of the Estate of Gerard Kloss, Plaintiff-Appellant, v. THE BOARD OF FIRE AND POLICE COMMISSIONERS OF THE VILLAGE OF MUNDELEIN et al., Defendants-Appellees.
    Second District
    No. 2—83—0921
    Opinion filed September 27, 1984.

      Larry L. Johnson, of Dunlap & Brown, of Libertyville, for appellant.
    Charles F. Marino, of Chicago, and Rosing, Magee & Applehans, Ltd., of Waukegan, for appellees.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

This is an appeal from an order of the circuit court of Lake County denying plaintiff Gerard Kloss’ motions for declaratory judgment and injunctive relief. Kloss, a 10-year police veteran with an otherwise unblemished service record, was discharged by the defendant Board of Fire and Police Commissioners on December 11, 1978, from the police force of the village of Mundelein for alleged wilful misconduct during an incident involving the use of his service revolver.

On administrative review, the circuit court of Lake County reversed the board’s findings and ordered Kloss reinstated with back pay. The board appealed, and this court, in a divided opinion, reversed and remanded the cause for imposition of a sanction less severe than discharge. Kloss v. Board of Fire & Police Commissioners (1982), 108 Ill. App. 3d 8.

The supreme court granted leave to appeal, reversed this court’s decision, vacated the circuit court’s order to reinstate Kloss, and remanded the matter to the board. (Kloss v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 252.) After remand, Kloss filed a motion for declaratory judgment that the board had lost jurisdiction of the matter, and for an injunction against the board to prevent further proceedings by it with regard to Kloss’ discharge.

The circuit court denied both motidns, electing to treat each as a complaint for the relief requested based on stipulated facts, rather than as motions in the context of an administrative review proceeding.

During the pendency of this appeal, Gerard Kloss died and we allowed his executor to be substituted.

The plaintiff contends on appeal that the relief requested was erroneously denied by the circuit court because the board’s delay in commencing a hearing after remand caused it to lose jurisdiction and denied him due process.

The supreme court’s mandate was filed in the circuit court on June 20, 1983. The board requested medical history information from the plaintiff on July 11, and he supplied a list of 24 doctors, psychiatrists, and hospitals on August 10. Upon his return from vacation, the board’s attorney requested information from each source on August 30 and September 1. As of September 19, counsel for the board advised the plaintiff’s attorney that responses from only six of the sources had been received. The plaintiff filed the instant suit for declaratory and injunctive relief on September 21.

Plaintiff requests this court to reverse the circuit court’s denial of the relief requested, and to remand the cause back to the circuit court of Lake County for a hearing on the amount of back salary and benefits owed to the estate of Gerard Kloss.

The facts underlying the filing of the misconduct charge in 1978 are sufficiently detailed in the previous appeals of this cause, and further repetition here is unwarranted and unnecessary to resolution of the present appeal. (Kloss v. Board of Fire & Police Commissioners (1982), 108 Ill. App. 3d 8, rev’d and remanded (1983), 96 Ill. 2d 252.) Of note briefly, however, is the prior disposition in each of the courts during the course of administrative review of the board’s decision to discharge Kloss. The circuit court found that the board’s decision was against the manifest weight of the evidence, and that the record did not support a finding that Kloss was guilty of wilful misconduct. Accordingly, the court reversed the board’s decision and ordered Kloss reinstated with back pay and other benefits. On appeal, this court concluded that the board’s findings of fact were not against the manifest weight of the evidence. This court also determined, however, that the plaintiff’s misconduct was unrelated to the requirements of service, and accordingly remanded the cause to the trial court with direction to remand to the board for appropriate disciplinary action short of discharge. In making that determination, this court noted that the incident in question marred “an otherwise unblemished career, and occurred while Kloss was off duty in his home reacting to family problems. Further, it is likely he was suffering the effects of a combination of alcohol and prescription drugs.” (108 Ill. App. 3d 8, 14.) The parties agreed that the trial court lacked the authority to order Kloss reinstated and awarded back pay and other benefits.

In reversing this court’s decision, the supreme court agreed with the circuit court’s determination that the record did not support a finding that Kloss was guilty of wilful misconduct; therefore, the board’s determination was contrary to the manifest weight of the evidence. The court did not agree, however, with this court's conclusion that Kloss’ behavior was unrelated to the needs of the police force or the village of Mundelein. It determined that it was unreasonable for the board in view of Kloss’ otherwise unblemished record to have discharged him “without availing itself of the opportunity to examine in greater detail the medically related aspects of the basis for his discharge.” (96 Ill. 2d 252, 259.) The court there had noted that the evidence presented to the board raised the strong possibility that Kloss’ irrational behavior stemmed from an inadvertently induced adverse reaction to his medication.

In addition to reversing this court’s judgment, the court there determined that the circumstances of the case required it to vacate the circuit court’s order to reinstate Kloss.

The question presented here is whether the board lost its jurisdiction of the matter because no hearing was held within 30 days after issuance of the supreme court’s mandate.

The supreme court’s judgment was filed with the clerk of that court on May 18, 1983. Thus, it was “entered of record” and became final on that date. (PSL Realty Co. v. Granite Investment Co. (1981), 86 Ill. 2d 291, 304-05.) As noted in Illinois State Chamber of Commerce v. Pollution Control Board (1978), 67 Ill. App. 3d 839, 843, a reviewing court in Illinois is not divested of jurisdiction until the parties’ rights of appeal have been exhausted. “ '*** [A] reviewing court is divested of jurisdiction in a cause before it when its mandate issues to a lower court (thereby restoring jurisdiction in that court) or when a petition for leave to appeal from the appellate court to the Illinois Supreme Court has been allowed or when a petition for leave to appeal or certiorari to the United States Supreme Court has been granted (thereby passing jurisdiction to the higher court).’ 2 Ill. App. 3d at 898, 274 N.E.2d at 360.” See also Bank of Viola v. Nestrick (1981), 94 Ill. App. 3d 511, 514-15.

Supreme Court Rule 368(a) provides that the mandate of the reviewing court shall not be transmitted earlier than 21 days after the entry of the judgment unless the court brders otherwise. (87 Ill. 2d R. 368(a).) A petition for rehearing may be filed for a period of up to 21 days after the reviewing court’s judgment is filed. 87 Ill. 2d R. 367(a).

The parties here note the supreme court’s mandate was issued on June 16, 1983, the date the document was signed and sealed by the clerk of the supreme court. As previously noted, the mandate was filed in the circuit court on June 20,1983. The mandate provided:

“It is the decision of this court that the order of the Appellate Court for the Second District be REVERSED insofar as it determined that the Circuit Court erred in finding the Board’s decision was contrary to the manifest weight of the evidence; and that the order of the Circuit Court of Lake County be VACATED insofar as it reinstated Gerald [sic] Kloss without further inquiry into his capacity to serve as a police officer. This cause is remanded to the Board so that it may avail itself of the opportunity to take further evidence to determine a proper disposition of this matter.”

It has been held that where a cause is remanded to a trial court, the trial court is bound to proceed as the mandate, not the opinion, directs it to unless the mandate instructs the court to proceed in conformity with the opinion. (Perrin v. Pioneer National Title Insurance Co. (1982), 108 Ill. App. 3d 181, 185.) Consequently, the board here was to “avail itself of the opportunity to take further evidence to determine a proper disposition of this matter.”

Kloss asserts the 30-day hearing requirement of section 10—2.1— 17 of the Illinois Municipal Code (the Code) (Ill. Rev. Stat. 1983, ch. 24, par. 10—2. 1—17) is mandatory and jurisdictional, and that like the “filing of charges,” a remand from a reviewing court to an administrative agency triggers the beginning of the 30-day period. In support he cites Bridges v. Board of Fire & Police Commissioners (1980), 83 Ill. App. 3d 190; Finin v. Board of Fire & Police Commissioners (1981), 98 Ill. App. 3d 879; Riggins v. Board of Fire & Police Commissioners (1982), 107 Ill. App. 3d 126; and Sherman v. Board of Fire & Police Commissioners (1982), 111 Ill. App. 3d 1001.

In pertinent part, section 10 — 2.1 — 17 provides:

“Except as hereinafter provided, no officer or member of the fire or police department of any municipality subject to this Division 2.1 shall be removed or discharged except for cause, upon written charges, and after an opportunity to be heard in his own defense. *** The board of fire and police commissioners shall conduct a fair and impartial hearing of the charges, to be commenced within 30 days of the filing thereof, which hearing may be continued from time to time. ***” Ill. Rev. Stat. 1983, ch. 24, par. 10-2.1-17.

Kloss argues this court’s decision in Bridges v. Board of Fire & Police Commissioners (1980), 83 Ill. App. 3d 190, is apposite and supports his position that the board lost jurisdiction to consider the matter further because it failed to commence a hearing within 30 days of the remand by the Illinois Supreme Court. The defendants respond that the court’s denial of the declaratory and injunctive relief sought by Kloss should be affirmed in view of the fact the initial hearing on the charges was scheduled for November 8, 1978, which was within the 30-day period, but was continued at Kloss’ request to November 29, 1978. Defendants assert the hearing to be held after remand was to be a continuation of the initial hearing, and that this distinguishing feature renders Bridges inapplicable here.

Kloss argues the “initial” or “continued” nature of the hearing cannot be regarded as the dispositive issue because no such distinction is made in Bridges. He further argues that, absent the control enunciated in Bridges, the board would have had unbridled discretion to determine when and if a hearing was to be convened after remand. He asserts that such a situation would be contrary to the obvious intent and spirit of the statute; i.e., to require that a board provide prompt adjudications to police and fire officers facing disciplinary action. He additionally disputes that the hearing after remand could be considered to be a “continuation” of the initial hearing, since under the Administrative Review Law (Ill. Rev. Stat. 1983, ch. 110, par. 3—101), a reviewing court only has jurisdiction to review “final administrative decisions.” Lastly, Kloss argues that a “close reading” of Bridges shows that a hearing was held there, and that the only distinction between that case and the instant one is the degree of impropriety in the respective hearings.

We agree with the defendants that Bridges is distinguishable and that the court did not err in denying the declaratory and injunctive relief requested.

Preliminarily we note that judicial relief may be sought before administrative remedies have been exhausted when the authority or jurisdiction of an administrative agency to proceed is challenged. (Sherman v. Board of Fire & Police Commissioners (1982), 111 Ill. App. 3d 1001 (injunction); Riggins v. Board of Fire & Police Commissioners (1982), 107 Ill. App. 3d 126 (injunction); Horan v. Foley (1963), 39 Ill. App. 2d 458 (declaratory judgment).) Further, the fact of Gerard Kloss’ death during the pendency of this appeal does not render the question moot, since the interest of his estate, at least in the issue of possible back pay and benefits, can be affected by the decision made by the board after receipt of further evidence.

In Bridges v. Board of Fire & Police Commissioners (1980), 83 Ill. App. 3d 190, this court found the failure of the board to commence a hearing within 30 days of remand to it from the circuit court deprived it of jurisdiction to subsequently discharge the plaintiff after a hearing 36 days after remand in which the board found him guilty of the original charges. Consequently, this court reversed the judgment of the circuit court affirming the plaintiff’s discharge on administrative review. The remand to the board in that case had been ordered because the circuit court’s opinion was that the plaintiff’s reneging on a prior plea agreement could not be sustained as a basis for dismissal from the police force. The court ruled that plaintiff was entitled to a hearing on the charges contained in the original complaint.

Contrary to the plaintiff’s assertion here, it is clear that no “hearing” was previously held in Bridges as that term is used in section 10—2. 1—17 of the Code. The statute itself provides that the officer may not be dismissed unless he has had an opportunity to be heard in his own defense. The court in Riggins v. Board of Fire & Police Commissioners (1982), 107 Ill. App. 3d 126, rejected the contention of the board there that a “hearing on the charges” had been commenced, because no discussion of the merits of the charges occurred, no arguments were made, and no witnesses were called. Similarly in Bridges, there was no discussion of the merits of the charges, no argument, no witnesses, and Bridges’ attorney’s demand for an immediate hearing on the charges went unheeded. The board discharged Bridges for the reason he reneged on a plea agreement which was negotiated by Bridges’ counsel, counsel for the Board, and the city police chief, and which was approved by Bridges’ counsel and the board’s counsel. The circuit court’s opinion was that Bridges’ repudiation of the plea agreement could not be sustained as the basis for his dismissal from the police force, and it remanded the cause for a hearing on the original charges that Bridges violated section 12—3 of the Criminal Code of 1961 and section 14.19 of the rules and regulations of the Zion Police Department relating to “prohibited activity while on duty.” Bridges v. Board of Fire & Police Commissioners (1980), 83 Ill. App. 3d 190, 192-93.

The board’s subsequent failure to commence a hearing within 30 days from the date the circuit court’s order was rendered on June 15, 1977, was held to have deprived it of its jurisdiction to act. Cf. Carrigan v. Board of Fire & Police Commissioners (1984), 121 Ill. App. 3d 303, 307-08 (board retains jurisdiction if delay attributable to plaintiff).

There is no dispute here that the original hearing on the charges against Kloss was commenced at a time when the board had jurisdiction. Although the hearing was not held within 30 days from the date of the filing of the charges, the delay was due to a request for continuance by Kloss. Where the delay in commencing the hearing until after the 30-day period is not attributable to the board, but rather is occasioned by the plaintiff, the statute is not violated. (Carrigan v. Board of Fire & Police Commissioners (1984), 121 Ill. App. 3d 303, 308.) Further, it is clear that “once commenced,” the hearing may be continued from time to time. Ill. Rev. Stat. 1983, ch. 24, par. 10—2. 1—17; Bridges v. Board of Fire & Police Commissioners (1980), 83 Ill. App. 3d 190, 194.

Although it is true that review of administrative decisions is limited to final decisions which terminate the proceedings before the agency (Ill. Rev. Stat. 1983, ch. 110, par. 3—101), the reviewing court’s power to remand a cause to the board for de novo or further hearing, evidence, or proceedings, is specifically authorized by statute. (Ill. Rev. Stat. 1983, ch. 110, pars. 3-111(a)(6), (a)(7); 87 Ill. 2d R. 366.) This power to remand frequently has been exercised. (See, e.g., Creamer v. Police Pension Fund Board (1978), 69 Ill. App. 3d 792 (for hearing de novo); Curtis v. State Police Merit Board (1953), 349 Ill. App. 448 (for grant of a hearing); Village of Western Springs v. Pollution Control Board (1982), 107 Ill. App. 3d 864 (for further hearings); Walsh v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 101 (for submission by either party of further evidence relevant to the issue of whether the officer’s misconduct was substantially the result of psychiatric problems that led to his prior medical suspension).) Remand by a reviewing court has been approved even when no hearing has been held by the administrative agency (Sahara Coal Co. v. Department of Mines & Minerals (1981), 103 Ill. App. 3d 115, 124), and a circuit court order remanding a cause to the administrative agency for further hearings or proceedings has been held to be a nonappealable interlocutory order. Mitrenga v. Martin (1982), 110 Ill. App. 3d 1006.

As noted in Creamer v. Police Pension Fund Board (1978), 69 Ill. App. 3d 792, 794: “The general rule is that when an administrative decision is reversed, vacated, or remanded, the case stands as if no decision had ever been made.” De novo means “ ‘trying the matter anew the same as if it had not been heard before and as if no decision had been previously rendered.’ ” 69 Ill. App. 3d 792, 796.

No hearing had been held in the Bridges case, and the circuit court’s remand was “for a hearing on the charges contained in the original complaint.” (83 Ill. App. 3d 190, 193.) In contrast, the remand here was not for a de novo hearing, or even specifically for a hearing. The board was mandated to “avail itself of the opportunity to take further evidence to determine a proper disposition of [the] matter.” Thus, it is clear that the proceedings at the original timely commenced hearing on the charges in November 1978 were not abrogated by the supreme court’s mandate, nor was the board’s jurisdiction to proceed after remand in this cause governed or limited by the jurisdictional provisions of section 10—2. 1—17 of the Code. Cf. Local Liquor Control Com. v. Illinois Liquor Control Com. (1978), 59 Ill. App. 3d 1 (de novo hearing is a new proceeding which is neither dependent upon, nor limited by, the proceedings below); McCaffery v. Civil Service Board (1955), 7 Ill. App. 2d 164, 173-74 (reviewing court remand of cause to an administrative body does not require a trial de novo, and if findings are lacking which may properly be made upon evidence already received by the administrative board, there is no requirement that such evidence by reheard, and if further evidence is necessary and available, that evidence may be taken).

We note the case cited by Kloss in his reply brief, Ragano v. Civil Service Com. (1980), 80 Ill. App. 3d 523, is apposite to Bridges and, therefore, is distinguishable for the same reasons Bridges is distinguishable; i.e., the “hearing” in Ragano which was convened and continued generally was determined to be only a subterfuge in order to meet the statutory 30-day requirement, and the sole “evidence” presented at that time was the fact of the plaintiff’s federal indictment for conspiracy. This court in Bridges recognized it would be a circumvention of the language of the statute to hold that a hearing continued at the outset amounted to a “commencement” of a hearing. (83 Ill. App. 3d 190, 194-95.) The hearing held below, however, was not a subterfuge, and plaintiff was accorded fully his right to present a defense to the charges. Consequently, Ragano is inapposite.

The grant, denial, or modification of injunctive relief is addressed to the trial court’s sound discretion, and the court’s judgment will not be disturbed unless it is against the manifest weight of the evidence. (People ex rel. Fahner v. Community Hospital of Evanston (1982), 108 Ill. App. 3d 1051.) Similarly, granting or denying a request for declaratory relief is discretionary, yet the trial court’s exercise of its discretion is not entitled to the same deference afforded it in other contexts, but is subject to searching appellate review. (Chicago & Eastern Illinois R.R. Co. v. Reserve Insurance Co. (1981), 99 Ill. App. 3d 433.) The court here found a hearing had been timely commenced in November 1978, and that Bridges was distinguishable on the basis that there was no hearing. Accordingly, the court did not err in denying Kloss’ request for declaratory and injunctive relief which would have prevented the board from continuing further proceedings relative to the charges against him. We find no abuse of discretion, and the court’s judgment will not be disturbed.

In addition to the issue of the board’s strict compliance with the 30-day requirement as provided by section 10 — 2.1 — 17, the plaintiff has alternately argued that his constitutional right to due process was abridged because a hearing was not held within 30 days of the supreme court’s remand. Defendants assert plaintiff failed to raise this issue below and, therefore, has waived the issue. Alternatively, defendants assert the record shows no violation of plaintiff’s due process rights.

Plaintiff’s motion for declaratory and injunctive relief and both parties’ briefs detail the chronology of events subsequent to the entry of record of the Illinois Supreme Court’s decision on May 18, 1983. By letter dated June 2, plaintiff’s counsel informed the board that plaintiff was to be examined by his doctors, and that plaintiff could arrange to be made available to the board for examination by its physician and psychiatrist as well. On June 20, the date the supreme court’s mandate was filed in the circuit court — thereby terminating the supreme court’s jurisdiction of the cause and revesting it in the circuit court — plaintiff was again offered by his counsel in a phone conversation with the board’s attorney to be made available to the board for examination. Plaintiff was examined by his own physician on June 24 and June 28. By letter dated July 11, plaintiff’s counsel was advised that prior to scheduling a hearing it would be necessary for the board to obtain plaintiff’s medical records from his original entry date on the Mundelein police force (May 5, 1969) to the present. Plaintiff was asked to complete a medical history and sign a medical release authorization. Plaintiff’s counsel by letter on July 20, 1983 — 30 days after the mandate was filed in the circuit court — acknowledged receipt of the forms and advised they had been forwarded to Kloss. Counsel indicated Kloss’ VA hospitalization records and records from Condell Hospital, to which he was admitted after the incident, were available in his office for the board’s inspection and copying. He also made a demand for an immediate hearing.

On August 10, plaintiff’s counsel sent the completed forms to the board’s counsel which listed a total of 24 medical record sources, including doctors, psychiatrists, and hospitals. Counsel indicated that although he objected to the scope of the information requested by the board, plaintiff’s health was declining and plaintiff wished him to provide the information in order to facilitate an immediate hearing. Counsel for the board was on vacation from August 12 to August 26, and on August 30 and September 1, he requested records by letter from each of the 24 sources listed by the plaintiff on the medical history form.

On September 12, plaintiff’s counsel wrote to the chairman of the Board of Fire and Police Commissioners expressing concern over a recent newspaper article which caused him to question the board’s ability to be impartial, and indicating it was his understanding that medical records had not yet been requested by the board from the sources listed by the plaintiff; He again renewed plaintiff’s request for an immediate hearing. On September 19, the board’s counsel advised plaintiff’s attorney by phone that as of that date only six responses had been received from the sources after they had been requested on August 30 and September 1, and advised him that the board planned to have the plaintiff examined when all of the medical records had been obtained. Plaintiff’s counsel confirmed the conversation of September 19 by letter on that same date, and re-expressed his and his client’s desire for an immediate hearing. The board’s attorney confirmed the substance of the September 19 conversation by letter to plaintiff’s attorney on September 20, 1983.

Plaintiff’s motion for declaratory and injunctive relief was then filed on September 21, denied after hearing on September 26, and denied again after hearing on plaintiff’s motion for reconsideration on October 17, 1983. Plaintiff thereafter perfected his appeal, and this court granted a stay of proceedings pending appeal. Further communications noted by defendants in their brief which occurred between the parties after the circuit court’s October 17 judgment and October 19 notice of appeal are dehors the record and may not be considered here.

Initially, we agree with the defendants that plaintiff failed to specifically raise the issue of his denial of constitutional due process in the court below, and thus has waived the issue here. (Janson v. Illinois Pollution Control Board (1979), 69 Ill. App. 3d 324.) It is true that administrative as well as judicial proceedings are governed by fundamental principles and requirements of due process of law. (Mathers v. Pollution Control Board (1982), 107 Ill. App. 3d 729; Scott v. Department of Commerce & Community Affairs (1981), 84 Ill. 2d 42.) Nevertheless, where the record fails to show that a matter urged on appeal was decided by the circuit court, the issue is not properly preserved, and an argument presented for the first time on appeal is deemed waived. Sherman v. Board of Fire & Police Commissioners (1982), 111 Ill. App. 3d 1001, 1007-08.

Even if the record of plaintiff’s comments below concerning the spirit and intent of section 10 — 2.1 — 17 of the Code may be construed as having raised the issue of a violation of plaintiff’s constitutional right of due process, it is clear that the trial court did not pass upon the issue in light of its comment at the conclusion of the hearing:

“Obviously there is a due process question that might arise in the future, but I think on the equities of the situation Officer Kloss has not been penalized by the failure of the village to have the hearing held by today’s date.” (Emphasis added.)

Later, at the hearing on plaintiff’s motion to reconsider, plaintiff argued the reason for the 30-day requirement was to afford policemen and firemen protection and so that things “won’t drag out and take a long time.” Yet, plaintiff also argued there that if the board needed to continue the hearing in order to obtain all of the medical records it wished, it could have continued it (the hearing) “all they [sic] want.” As defendants point out, nothing of significance could have been accomplished at such a hearing held before the board had acquired the medical records it determined it needed in order to devise a proper disposition. Further, commencement of such a sham “hearing” simply for the purpose of complying with the 30-day requirement would likely not have survived challenge on review. See, e.g., Riggins v. Board of Fire & Police Commissioners (1982), 107 Ill. App. 3d 126, 129.

Aside from the initial statutory jurisdictional requirement set forth in section 10 — 2.1 — 17 of the Code, it has been held that the demands of due process do not require a hearing at the initial stage or at any particular point or at more than one point in a proceeding so long as the requisite hearing is held before the final order becomes effective. (People ex rel. Pennsylvania R.R. Co. v. Illinois Commerce Com. (1968), 40 Ill. 2d 58.) Administrative due process requires only a definite charge, adequate notice, and a full and impartial hearing. (Cox v. Daley (1981), 93 Ill. App. 3d 593.) After a judgment is reversed and the cause is remanded, the inferior tribunal can take only such further proceedings as conform to the judgment of the appellate tribunal; if specific directions are given, nothing can be done except carry out those directions, but if no specific directions are given, it must be determined on the nature of the case what further proceedings will be proper and not inconsistent with the opinion. (People v. Webb (1982), 109 Ill. App. 3d 328; In re Marriage of McMahon (1980), 82 Ill. App. 3d 1126, 1133.) An administrative investigation that is arbitrary or in excess of statutory authority or undertaken for an improper purpose, such as to harass, violates due process. (Scott v. Association for Childbirth at Home, International (1981), 88 Ill. 2d 279; People ex rel. Fahner v. Halzel (1982), 114 Ill. App. 3d 560.) The permissible scope of an administrative demand for information or the production of documents is measured by the relevance of the information sought to the problem under investigation. 88 Ill. 2d 279, 296-97.

We believe the record here shows the board was proceeding in a reasonably prompt and expeditious manner in compliance with the mandate, and that the plaintiff’s due process rights have not been violated. A proceeding before an administrative body is not a partisan proceeding but is instead an administrative investigation instituted for the purpose of ascertaining and making findings of fact, and should adhere reasonably to the procedure ordinarily followed in controverted matters. (Gigger v. Board of Fire & Police Commissioners (1959), 23 Ill. App. 2d 433, 438.) We find no contention in the record that the plaintiff was limited at the initial hearing in presenting relevant medical evidence with regard to his irrational behavior on the date of the incident. Further, although his counsel’s communications with the board after the remand appear to question the scope of the information sought by the board in “availing” itself of the opportunity to take further evidence, nevertheless, plaintiff himself acquiesced in the request for such information in order to expedite the hearing. Consequently, whether the board had either the burden or the authority to obtain the extensive medical reports was not an issue presented to or decided by the court below, and is not properly before this court.

Additionally, the record does not contain a hint of truth to the plaintiff’s suggestion that the extent of the medical records sought by the board was calculated to deprive him of a prompt hearing or for any purpose other than to enable the board to comply with the supreme court’s mandate. The board could not conceivably have envisioned that the plaintiff would die before it had a chance to evaluate the further evidence gathered after remand, particularly in view of the fact the record indicates the plaintiff died as the result of a myocardial infarction which, ostensibly at least, was unrelated to the disability he endured with respect to his hip joints at the time the instant action was pending below.

We conclude the plaintiff has not been denied due process as the result of the delay.

Because we affirm the judgment of the court below, we do not decide the propriety of plaintiff’s prayer for relief seeking remand to the circuit court for determination of the back pay and benefits owed his estate.

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

Judgment affirmed.

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


author: JUSTICE JONES

text:
    ANTHONY J. GRECO, Plaintiff-Appellee, v. DR. BARRETT L. COLEMAN, Defendant-Appellant.
    Fifth District
    No. 5—83—0612
    Opinion filed September 13, 1984.

      Dunham, Boman & Leskera, of East St. Louis (John W. Leskera and Russell K. Scott, of counsel), for appellant.
    William E. Brandt and George Moran, Sr., both of Law Offices of William E. Brandt, of Granite City, for appellee.
   JUSTICE JONES

delivered the opinion of the court:

Defendant, Dr. Barrett L. Coleman, has petitioned this court pursuant to Supreme Court Rule 306(a)(1)© (87 Ill. 2d R. 306(a)(1)©) for leave to appeal from an order of the circuit court of Madison County entered August 4, 1983, granting plaintiff Anthony Greco a new trial on the sole issue of damages.

Prior to the expiration of the original 30-day period in which a petition for leave to appeal must be filed, defendant filed pursuant to Supreme Court Rule 306(e) (87 Ill. 2d R. 306(e)) a motion for an extension of time in which to file the petition for leave to appeal. In an order entered September 13, 1983, this court extended the time in which defendant was to file his petition for leave to appeal until December 5, 1983. Prior to the expiration of the extended time, defendant moved for another extension, and this court again extended the time in which to file his petition for leave to appeal, on this occasion until December 20, 1983. Defendant’s petition for leave to appeal to this court was mailed on December 20, 1983, and pursuant to Supreme Court Rule 373 (87 Ill. 2d R. 373) was deemed to have been filed on that date. However, the record on appeal in support of defendant’s petition was not mailed until December 22, 1983. As no further extensions of time had been sought, the record was deemed to be untimely, and on April 2, 1984, this court issued an order requiring defendant to show cause why his petition should not be dismissed for lack of jurisdiction for failure to comply with the requirements of Supreme Court Rule 306. Defendant filed a timely response and requested oral argument. Plaintiff’s request for leave to reply to defendant’s response was granted, and a reply was filed.

Section 6 of article VI of the Illinois Constitution of 1970 (Ill. Const. 1970, art. VI, sec. 6) provides that appeals from final judgments of a circuit court are a matter of right to the appellate court. An appeal from such a judgment is initiated by filing a notice of appeal. No other step is jurisdictional. (87 Ill. 2d R. 301.) Section 6 of article VI also provides that appeals from other than final judgments may be provided for by rule of the supreme court. Since such interlocutory appeals may only be brought pursuant to rule, it follows that the failure to comply with the provisions of the applicable rule takes on jurisdictional significance. For this reason, our show-cause order of April 2, 1984, implied that the failure to timely file the record on appeal precluded our court from obtaining jurisdiction.

In his response, defendant contends that the filing of the record on appeal in appeals brought pursuant to Supreme Court Rule 306 should not be considered a jurisdictional prerequisite. Defendant cites us to Venturi v. Bulk Petroleum Corp. (1979), 70 Ill. App. 3d 967, 388 N.E.2d 1147, in support of this contention. Venturi involved an interlocutory appeal brought pursuant to Supreme Court Rule 307 (87 Ill. 2d R. 307), wherein the appellant had failed to file the record on appeal within the time specified by that rule for such appeals. The Venturi court held that the failure to comply with the record-filing requirement for interlocutory appeals under Supreme Court Rule 307 was not a jurisdictional defect. Rather, the court concluded that it fell within the court’s discretion to order a dismissal for noncompliance with the record-filing requirements of the rule. In so holding, the court stated:

“Although we do not condone a disregard for the rules of the supreme court, we are cognizant of the provision in Rule 301 that no step, other than the filing of a notice of appeal, is jurisdictional. Therefore, we decline to dismiss this appeal on procedural grounds and elect, in the exercise of our discretion, to consider the merits of this appeal.” 70 Ill. App. 3d 967, 970.

The Venturi court’s reliance on Supreme Court Rule 301 would seem to be misplaced, in that Rule 301 applies to final judgments of the circuit courts and not orders of an interlocutory nature like the order then before that court. As outlined above, appeals from final judgments of the circuit courts come as a matter of right, whereas interlocutory appeals are only permitted if provided for by supreme court rule. (Ill. Const. 1970, art. VI, sec. 6.) The Venturi court did not discuss this distinction.

Defendant also cites this court to the case of In re Marriage of Armstrong (1982), 107 Ill. App. 3d 217, 437 N.E.2d 761. The Armstrong court, citing Venturi, held that “[dismissal based upon noncompliance with supreme court rules regarding filing of records and reports of proceedings is discretionary.” (107 Ill. App. 3d 217, 219.) However, the Armstrong case involved an appeal from a final judgment brought pursuant to Supreme Court Rule 301, and not an interlocutory appeal.

The only other analogous case our research has unearthed is In re Marriage of Rossi (1981), 100 Ill. App. 3d 669, 427 N.E.2d 294. Rossi involved the dismissal of an interlocutory appeal “for failure to comply with Supreme Court Rule 307.” (100 Ill. App. 3d 669, 673.) The Rossi court gave no basis for its ruling other than the failure to comply with Supreme Court Rule 307 and, thus, did not discuss the issue in terms of the jurisdiction of the court. The cases to which the Rossi court cites do discuss appellate jurisdiction but not in the context of the record-filing requirements for interlocutory appeals. In re Marriage of Zymali (1981), 94 Ill. App. 3d 1145, 419 N.E.2d 487; In re Marriage of Brown (1980), 86 Ill. App. 3d 964, 410 N.E.2d 79; In re Marriage of Lentz (1980), 79 Ill. 2d 400, 403 N.E.2d 1036; English v. English (1979), 72 Ill. App. 3d 736, 393 N.E.2d 18.

At this juncture, we point out that none of the above cases involve Supreme Court Rule 306 but, rather, deal with Rule 307. However, like Rule 306 appeals, appeals under Rule 307 are interlocutory in nature. Thus, from a jurisdictional standpoint, the record-filing requirements of both rules should receive similar treatment. We are inclined to take this position despite the fact that the wording of the two rules with regard to the filing of the record is dissimilar. Rule 306 provides that the record shall be filed with the petition, while Rule 307 allows the record and the notice of interlocutory appeal to be filed separately. We believe that to attach jurisdictional significance to such a distinction would be unduly technical. Furthermore, jurisdiction under Rule 306 is granted by the reviewing court based upon its review of the petition for leave to appeal. Rule 306(a)(1) requires that the petition for leave to appeal contain a statement of the facts of the case, supported by reference to the record. Rather than being jurisdictional, the requirement that the record accompany the petition simply facilitates the appellate court’s review of the petition. Indeed, both Rule 306 and Rule 307 only mention the filing of the records in the context of setting shorter time limits in which to file those records than is allowed for filing records on appeal from final judgments. We do not believe that these shorter time limits were intended to be jurisdictional, but rather, we believe they were established to facilitate the expedited handling of interlocutory appeals. Dismissal for failure to comply therewith should therefore be a matter left to our discretion, as is dismissal for want of prosecution.

Of the cases cited by plaintiff in his reply, only Johnny Bruce Co. v. Fung (1970), 123 Ill. App. 2d 396, 259 N.E.2d 412, warrants any comment. The remaining cases merely stand for the proposition that the sole means of securing review of an order granting a new trial is pursuant to Rule 306. Fung involved an appeal from a judgment entered in a forcible entry and detainer action. At the time of that decision, the Forcible Entry and Detainer Act (Ill. Rev. Stat. 1967, ch. 57, par. 19) provided that in order to perfect an appeal from a judgment entered under the act, the notice of appeal and a bond had to be filed within five days from the entry of the judgment appealed from. The court held that the requirement for filing of the bond was jurisdictional and dismissed the appeal for failure to timely file the bond. The case can be distinguished on the basis that, at the time the decision was rendered, appeals from judgments entered in forcible entry and detainer actions were specifically governed by that act and not the Civil Practice Act (Ill. Rev. Stat. 1967, ch. 57, par. 11).

We are thus persuaded by the opinions of the other appellate courts that the record-filing requirements of Rules 306 and 307 are not jurisdictional and that dismissal based upon noncompliance therewith is a matter left for our discretion. We echo the sentiments of the court in Venturi v. Bulk Petroleum Corp. (1979), 70 Ill. App. 3d 967, 388 N.E.2d 1147, and similarly condemn defendant’s disregard of the rules of our supreme court. However, having held that the record-filing requirements of Supreme Court Rule 306 are not jurisdictional, and that dismissal for noncompliance therewith is discretionary, we elect, in the exercise of that discretion, to consider the petition for leave to appeal and record received and filed herein. Defendant’s request for oral argument in connection with this matter is denied. (87 Ill. 2d R. 361(b)(2).) Our order of, April 2, 1984, requiring defendant to show cause why his petition should not be dismissed for lack of jurisdiction for failure to comply with Supreme Court Rule 306 is discharged.

The court having considered the petition for leave to appeal filed herein together with the record in support thereof, and the court having been fully advised in the premises, it is ordered that defendant’s petition for leave to appeal be and hereby is allowed. The parties are directed to file their briefs in accordance with Supreme Court Rule 306(g) (87 Ill. 2d R. 306(g)).

Rule discharged; petition for leave to appeal allowed.

WELCH, P.J., and KASSERMAN, J., concur.


author: JUSTICE McNAMARA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. J.A., a Minor, Respondent-Appellant.
    First District (3rd Division)
    No. 83—606
    Opinion filed September 28, 1984.

      Steven Clark and Cheryl Berdelle, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin A. Sweeney, and Timothy J. Frenzer, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court;

A petition for adjudication of wardship charged the minor respondent with robbery in that he took food and $10 from another person. Because respondent had two prior adjudications for robbery, the juvenile court granted the State’s motion that he be prosecuted as a habitual juvenile offender under section 5 — 12 of the Juvenile Court Act (Ill. Rev. Stat. 1983, ch. 37, par. 705—12). After a hearing, respondent was adjudicated a ward of the court. At another hearing, he was committed to the Department of Corrections, Juvenile Division, until his 21st birthday. On appeal, respondent contends that the juvenile habitual offender statute cannot be construed to include adjudications of delinquency occurring prior to respondent’s 13th birthday, that the application of the habitual offender statute here constitutes a denial of due process, that the commitment constitutes cruel and unusual punishment, that the prosecution of respondent under the habitual offender statute constitutes an abuse of prosecutorial discretion, and that the trial court’s denial of respondent’s request for a continuance constituted reversible error.

Jeffrey Pryor testified that on August 31, 1982, as he was carrying a bag of chicken, he was accosted by several teenagers, one of whom was respondent. When Pryor refused to give up his food, respondent summoned two more boys and began pushing the victim against a wall. After one assailant struck Pryor in the face and another grabbed him in a headlock, respondent took $10 from Pryor’s pocket. The robbers then fled.

Respondent, 13 years old, testified that he knew his friends intended to rob and beat Pryor. Respondent, however, stood 10 feet away and did not participate. Two other boys, charged with the same robbery, corroborated respondent’s testimony.

Respondent first maintains that because he was 12 years old at the time of his two prior adjudications of delinquency and at that time could not be prosecuted as an adult under any circumstances, the requirements of section 5 — 12 were not met. Section 5 — 12 of the Juvenile Court Act provides in pertinent part:

“(a) Any minor having been twice adjudicated a delinquent minor for offenses which, had he been prosecuted as an adult, would have been felonies under the laws of this State, and who is thereafter adjudicated a delinquent minor for a third time shall be adjudged an Habitual Juvenile Offender where:
* * *
4. the third offense was based upon the commission of or attempted commission of the following offenses: murder, voluntary or involuntary manslaughter; rape or deviate sexual assault; aggravated or heinous battery involving permanent disability or disfigurement or great bodily harm to the victim; burglary of a home or other residence intended for use as a temporary or permanent dwelling place for human beings; home invasion; robbery or armed robbery; or aggravated arson.” (Emphasis added.) Ill. Rev. Stat. 1983, ch. 37, par. 705—12.

Respondent interprets the emphasized statutory language as an age classification restricting the statute’s applicability, since only minors between the ages of 13 and 17 may be prosecuted as an adult. (Ill. Rev. Stat. 1983, ch. 37, par. 702—7.) The State urges that the Act merely defines the type of crime to which the statute will apply and that it is applicable to all delinquency adjudications.

The language of a statute must be given its plain and ordinary meaning. (People v. Moore (1978), 69 Ill. 2d 520, 372 N.E.2d 666.) And from our reading, the plain and ordinary meaning of the Act precludes respondent’s claim. There is nothing in the language to indicate the legislature intended to create a special class of juvenile offenders under the age of 13 whose adjudications would not subject them to the habitual juvenile offender statute. That the pertinent language describes the type of offense and not the age of the offender is clear from a reading of the entire statute. The fourth requirement of the statute specifies the felonies which must be committed before a minor is subject to such an adjudication. The legislature intended to deal with the problem of serious crime committed by minors, and it did not draw a distinction for serious offenders under the age of 13. The juvenile court properly considered respondent’s prior adjudications in adjudging respondent a habitual juvenile offender.

Respondent next contends that consideration of his prior adjudications of delinquency denies his right to due process and equal protection. He argues that, had his prior offenses occurred after his 13th birthday, he could have transferred the cases to the criminal court to be tried as an adult, thereby circumventing the habitual juvenile offender statute. Respondent further argues that the statute illogically imposes the harshest and longest penalty on the youngest and least serious offender.

We find the holding of People ex rel. Carey v. Chrastka (1980), 83 Ill. 2d 67, 413 N.E.2d 1269, to be dispositive of the issue. There, our supreme court held that the habitual juvenile offender statute did not violate the due process or equal protection clauses of the constitution. The court stated: “We do not believe that the fortuitous disparity of the terms of confinement of habitual juvenile offenders which results from the variance in age of such individuals serves to invalidate the means chosen to effectuate the purpose of the Act.” (83 Ill. 2d 67, 81.) We also reject respondent’s position that a younger juvenile, adjudged a habitual juvenile offender for the commission of three robberies, is any less a serious threat to society than an older juvenile committing the same acts.

Respondent next contends that the imposition of an eight-year sentence was cruel and unusual punishment for robbing another boy of $10 and a bag of chicken. Although the Chrastka court specifically rejects this argument, respondent maintains that the decision of the United States Supreme Court in Solem v. Helm (1983),_U.S. _, 77 L. Ed. 2d 637, 103 S. Ct. 3001, requires a reassessment. In Solem, the court considered three factors in evaluating whether a particular sentence constituted cruel and unusual punishment. The court looked at the gravity of the offense compared to the harshness of the penalty, the sentence imposed on other criminals in the same jurisdiction, and the sentences imposed for the same crime in other jurisdictions.

Assuming the Solem factors apply to juvenile proceedings, we find that the criteria are met in the present case. Respondent’s previous adjudications, in October and December 1981, were for two robberies of a total of $36. Contrary to respondent’s assertions, pushing a victim into a wall, holding him in a headlock, striking him in the face, and robbing him of his money on a public street is indeed a serious offense. Respondent’s conduct was violent and unprovoked, and the gravity of the offense justified the court’s disposition. Moreover, the remaining criteria are also met. Rather than applying the same penalty to offenses of unequal severity, the statute is limited to specific serious, multiple offenses. The Act is also comparable to juvenile statutes in other jurisdictions. See, e.g., Cal. Welf. & Inst. Code sec. 607(b) (West Supp. 1984); N.Y. Family Court Act Law sec. 353.5 (McKinney 1983).

Respondent also maintains that the prosecutor abused his discretion in proceeding under the habitual juvenile offender statute when respondent was charged with a minor offense. Respondent concedes that his offense technically constituted robbery, but urges that it is not the serious offense intended by the legislature to trigger the application of the statute.

A prosecutor has wide latitude in determining the charges to be brought, after a fair evaluation of the evidence and a fair consideration of what the proper charge should be. (People v. Rhodes (1967), 38 Ill. 2d 389, 231 N.E.2d 400.) We find no evidence of abuse of discretion or vindictiveness here in charging respondent as a habitual juvenile offender when he was twice adjudged delinquent and was again before the juvenile court charged with robbery. As we have already noted, the robbery was indeed serious.

Respondent finally urges that the juvenile court abused its discretion in denying his request for a continuance to call a material witness.

During the hearing, the State presented the testimony of Officer Caddigan, who had questioned Pryor after the robbery. Caddigan stated that Pryor first told him that respondent held him while another boy took the money and later said that respondent took the money. At the hearing, Pryor testified that respondent took his money. Defense counsel requested a continuance to call Officer Keever, who had spoken with Caddigan and compiled the police report on the incident. The judge denied the request.

An accused, of course, has the right to summon witnesses in his defense. A motion for continuance may be made when a material witness is unavailable, but the right to a continuance is not absolute. (People v. McEwen (1982), 104 Ill. App 3d 410, 432 N.E.2d 1043.) In claiming an abuse of discretion, the accused must demonstrate that the denial of the continuance impeded him in the preparation of his defense or prejudiced his rights. People v. Petrovic (1981), 102 Ill. App. 3d 282, 430 N.E.2d 6.

The testimony of Caddigan adequately established that Pryor had given him two different versions of who took the money, and McKeever’s testimony would have been cumulative on the issue. Consequently, the absence of the witness did not prejudice respondent, and the juvenile court did not abuse its discretion in denying the request for a continuance.

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

Judgment affirmed.

McGILLICUDDY and WHITE, JJ., concur.


author: JUSTICE LORENZ

text:
    ALLEN STOLTZNER, Plaintiff-Appellant, v. AMERICAN MOTORS JEEP CORPORATION, INC., et al., Defendants-Appellees.
    First District (5th Division)
    No. 83—1563
    Opinion filed September 28, 1984.

      Louis Hilfman, of Louis Hilfman, Ltd., of Chicago, for appellant.
    Baker & McKenzie, of Chicago (Francis D. Morrissey, Norman J. Barry, Jr., and Paul B. O’Flaherty, Jr., of counsel), for appellees.
   JUSTICE LORENZ

delivered the opinion of the court:

This is an appeal from the dismissal of plaintiff Allen Stoltzner’s complaint seeking compensation for personal injuries against defendants American Motors Jeep Corporation, American Motors Sales Corporation and Des Plaines AMC Jeep. The sole issue presented for review is whether plaintiff’s breach of warranty claim was barred by the applicable statute of limitations. We accept all well-pleaded facts as true.

On April 12, 1977, plaintiff purchased a new Jeep. Defendants extended to plaintiff a written warranty providing in part:

“*** Jeep Corporation warrants to you that for 12 months or 12,000 miles from the date of delivery or first use, whichever comes first, it will, except for tires, pay for the repair or replacement of any part it supplies which proves defective in material or workmanship under normal use and service ***. No other express warranty is given or authorized by Jeep Corporation. Jeep Corporation disclaims any implied warranty of MERCHANTABILITY or FITNESS for any period beyond the express warranty, and shall not be liable for loss or use of vehicle, loss of time, inconvenience, or other incidental or consequential damages.”

On August 3, 1977, the Jeep rolled over and plaintiff was seriously injured. Plaintiff filed his complaint on July 31,1981.

Defendants filed a motion to dismiss pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2—619) and stated that plaintiff’s claims were barred by the applicable statutes of limitations. Plaintiff conceded the bar as to a separate claim sounding in tort, and that claim forms no part of this appeal. With respect to his breach of warranty claim, plaintiff argued that defendants’ written warranty delayed the accrual of his cause of action until the breach should have been discovered; he stated by affidavit that he discovered the Jeep’s propensity to overturn three years after the accident. The trial court granted the motion to dismiss, and plaintiff appeals.

Opinion

Section 2—725 of the Uniform Commercial Code (the Code) provides in pertinent part:

“(1) An action for breach of any contract for sale must be commenced within 4 years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it.
(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 26, par. 2—725.)

This section governs personal injury actions based on breach of warranty, and represents a substantial extension of the filing period for such actions, hence the provision should be construed literally. Berry v. G. D. Searle & Co. (1974), 56 Ill. 2d 548, 554-56, 309 N.E.2d 550.

Here, delivery occurred on April 12, 1977, and the action commenced on July 31, 1981, more than four years later. Therefore, plaintiff’s suit was barred unless the warranty explicitly extended to future performance of the Jeep. Plaintiff argues that defendants’ express warranty for 12 months or 12,000 miles, coupled with their express disclaimer of implied warranties “for any period beyond the express warranty,” amounted to an explicit extension of the warranties of merchantability and fitness to future performance for that period.

In Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 435 N.E.2d 443, our supreme court considered, inter alia, the exception to the Code’s limitation period. The Moorman court approved appellate decisions which reasoned that accrual of an action is not delayed “merely because it is reasonable to expect that a warranty of merchantability extends for the life of a product” (91 Ill. 2d 69, 93, 435 N.E.2d 443), and the court adopted an oft-quoted definition of “explicit” as “[njot implied merely, or conveyed by implication; distinctly stated; plain in language; clear; not ambiguous; express; unequivocal.” (Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 93-94, 435 N.E.2d 443; see also Beckmire v. Ristokrat Clay Products Co. (1976), 36 Ill. App. 3d 411, 413, 343 N.E.2d 530; Binkley Co. v. Teledyne Mid-America Corp. (E.D. Mo. 1971), 333 F. Supp. 1183, 1186-87, aff’d (8th Cir. 1972), 460 F.2d 276. But see Black’s Law Dictionary 519 (5th ed. 1979).) The supreme court held that defendant’s express warranty, “Tank designed to withstand 60 lbs. per bushel grain and 100 m.p.h. winds,” did not explicitly extend to future performance, and plaintiff’s action was barred.

Although factual differences exist, we believe that the principles enunciated in Moorman are dispositive of the case at hand. In order to accept plaintiff’s position, one must infer from the disclaimer of implied warranties after the express warranty period that the implied warranties were extended to performance during such period. Plaintiff posits that no other inference is possible; defendants argue that the inference is not even reasonable, given the contextual restriction and negation of both express and implied warranties, and we are inclined to agree. Even accepting for the sake of argument that the “disclaimer-after, therefore extension-during” inference is reasonable, the exception to section 2 — 725 requires more than a reasonable inference — it requires a distinct statement.

Moreover, we are persuaded by the weight of authority in other jurisdictions holding that implied warranties by definition cannot explicitly extend to future performance. (See Stumler v. Ferry-Morse Seed Co. (7th Cir. 1981), 644 F.2d 667 (interpreting Indiana U.C.C.); Holdridge v. Heyer-Schulte Corp. (N.D.N.Y. 1977), 440 F. Supp. 1088, 1100-04 (interpreting New York U.C.C.); General Motors Corp. v. Tate (1974), 257 Ark. 347, 516 S.W.2d 602; Grand Island School District v. Celotex Corp. (1979), 203 Neb. 559, 279 N.W.2d 603.) The Code’s “salutary attempt to establish uniformity among the various jurisdictions” (Berry v. G. D. Searle & Co. (1974), 56 Ill. 2d 548, 553, 309 N.E.2d 550) suggests a consonant interpretation, and we believe that good reason supports the result. Implied warranties arise by operation of law unless explicitly negated or restricted by the parties. (See Ill. Rev. Stat. 1981, ch. 26, pars. 2—314, 2—315, 2 —316(2).) The exception to section 2 — 725 would swallow the rule if courts interpreted an attempt to disclaim implied warranties as an explicit extension to future performance. Therefore, we hold that defendants’ written warranty which disclaimed implied warranties did not constitute an explicit extension so as to delay accrual of plaintiff’s cause of action.

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

Affirmed.

SULLIVAN and O’CONNOR, JJ., concur.


author: JUSTICE STOUDER

text:
    LOIS ALLEN, Plaintiff-Appellee, v. LOYD DUFFIE, SR., Defendant-Appellant.
    Third District
    No. 3—84—0167
    Opinion filed September 26, 1984.

      Diane Ford Stamp, of Stamp & Stamp, of Stronghurst, for appellant.
    No brief filed for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The defendant-appellant, Loyd Duffie, Sr., appeals from an order of the circuit court of Hancock County adjudging him to be in contempt for failing to appear in court as commanded in a citation to discover assets. The defendant was fined $100 and assessed $22.80 for costs incurred by the plaintiff in appearing at the citation proceeding, plus costs incurred by the sheriff in picking up the defendant on a writ of attachment. We affirm.

We note initially that the plaintiff has not filed an appellee’s brief. It is well established, however, that where the record is simple and the court of review can easily decide the claimed errors without an appellee’s brief, the reviewing court may decide the merits of the appeal. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

Briefly, the facts of this case are as follows. The plaintiff-appellee, Lois E. Allen, filed a small claim complaint against the defendant on July 18, 1983, claiming that the defendant was indebted to her for a color television, a bicycle, and other personal property wrongfully held by him. A bench trial was held on July 26, 1983, and judgment was entered for the plaintiff in the amount of $1,160, plus costs. On November 4, 1983, a citation to discover assets was issued commanding the defendant to appear in court on December 7, 1983, and to produce copies of his income tax returns and titles to all cars, trucks, recreational vehicles, and motorcycles. The citation was returned and filed and indicated that it was served on the defendant at his residence on November 19,1983, at 9:30 p.m.

The defendant failed to appear in court on December 7, 1983, and a writ of attachment for contempt was issued. A hearing was conducted on February 3, 1984, as to whether the defendant should be held in contempt for his failure to appear. The court called as a witness Charles E. Shirey, a deputy sheriff in Hancock County. Officer Shirey testified that he served the citation on the defendant at his residence on the evening of November 19, 1983. He was there for three or four minutes and tried to explain to the defendant that he would be required to bring certain documents to court. The defendant stated that he did not own any of the items listed on the citation and that he had not filed income tax returns for years. Shirey put his initials on the defendant’s copy, and when the defendant would not take it, Shirey opened the defendant’s screen door and dropped it on the floor.

At the end of the testimony the trial court stated that it believed Officer Shirey was telling the truth and that the defendant had lied. The court explained that Officer Shirey’s testimony was corroborated by statements the defendant had made in court on January 23, 1984, when he requested a continuance. On that date, the defendant told the court that he could not produce his income tax returns because he had not filed any and that he did not own any of the vehicles listed in the citation. The court stated that since Officer Shirey was not in court on January 23, 1984, there was no way he would have known those facts unless he had served the citation on the defendant.

The sole contention raised by the defendant on appeal is that the evidence is insufficient to support the trial court’s finding of contempt.

There are two classes of contempt proceedings; criminal and civil. Criminal contempt consists of conduct, such as insulting language, which is directed against the dignity and authority of a court. Civil contempt consists of the failure by a party to do an act ordered by the court for the benefit of an opposing party. Civil contempt proceedings are remedial or coercive in nature. Marcisz v. Marcisz (1976), 65 Ill. 2d 206, 209, 357 N.E.2d 477, 479.

Criminal and civil contempt may also be direct or indirect in nature. Direct contempt of court involves conduct occurring in the presence of the trial court and may be punished summarily. (People v. Graves (1979), 74 Ill. 2d 279, 284, 384 N.E.2d 1311, 1314.) Indirect contempt involves conduct that does not occur in the presence of the trial court and thus is not within the personal observation and knowledge of the judge. The power to punish for contempt rests within the sound discretion of the trial court and its determination will not be disturbed on review unless there has been an abuse of discretion. Board of Junior College District No. 508 v. Cook County College Teachers Union, Local 1600 (1970), 126 Ill. App. 2d 418, 432, 262 N.E.2d 125, 131, cert, denied (1971), 402 U.S. 998, 29 L. Ed. 2d 165, 91 S. Ct. 2168.

In the present case, the defendant was held in contempt of court for failing to appear on December 7, 1983, as requested in the citation to discover assets. The citation was issued for the benefit of the plaintiff, who had earlier received a judgment against the defendant for $1,160, plus costs. Thus, the character of the contempt was civil. In addition, the contempt was indirect in nature because the defendant’s conduct, or lack of it, occurred outside the presence of the court. Since the contempt was indirect, the trial court properly proceeded by first notifying the defendant of the contempt proceeding and then conducting a hearing at which the defendant was allowed to defend himself. After hearing all the evidence, the trial court chose to believe Officer Shirey’s testimony that he personally served the defendant with the citation to discover assets at the defendant’s residence.

From a review of the record, it appears that the defendant thought that he could avoid service by simply refusing to physically take the citation when Officer Shirey handed it to him. Then, the defendant chose to disregard the commands of the citation by not appearing in court with the documents as requested. We find that the trial court did not abuse its discretion in finding the defendant in indirect civil contempt of court and in imposing a fine of $100, plus costs.

For the foregoing reasons, the order of the circuit court of Hancock County is affirmed.

Affirmed.

ALLOY, P.J., and BARRY, J., concur.