THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. RONALD D. FLAUGHER, Defendant-Appellee, 396 Ill. App. 3d 673

JUSTICE APPLETON delivered the opinion of the court: In October 1991, the trial court sentenced defendant, Ronald D. Flaugher, to two consecutive 15-year prison terms upon his convictions of two counts of attempt (first degree murder) (Ill. Rev. Stat. 1991, ch. 38, pars. 8 — 4(a), 9 — 1(a)(1)). The court stayed the execution of defendant’s sentence until he was released from federal prison.

After serving 17 years in federal custody, defendant filed a motion for a declaratory judgment, seeking a declaration that his Calhoun County sentences should run concurrently with his federal sentence, thereby entitling him to sentence credit for time served in federal prison. In June 2008, the trial court granted defendant’s motion, ordering defendant’s two 15-year sentences for attempted first degree murder run concurrently with each other and with his federal sentence. The State appeals.

We find the court (1) lacked jurisdiction to modify the two 15-year terms from mandatory consecutive to concurrent and (2) erred in ordering defendant’s state sentence to run concurrently with his federal sentence when the two were statutorily mandated to run consecutively. We vacate the court’s judgment and remand with directions. I. BACKGROUND On July 9, 1990, by information, the State charged defendant with two counts of attempt (first degree murder) (Ill. Rev.

Stat. 1991, ch. 38, pars. 8 — 4(a), 9 — 1(a)(1)) for shooting his brother, Thomas Flaugher, and Thomas’s then wife, Dorothy, with a shotgun on July 8, 1990. The shooting incident stemmed from a dispute regarding a land partnership between Thomas and defendant. Defendant was released on bond on July 10, 1990. On August 3, 1990, the State charged defendant with the same offenses by the issuance of superseding indictments.

On November 30, 1990, while released on bond, defendant was arrested by federal authorities and later charged in the Southern District of Illinois in case No. 92 — 2559 with (1) conspiracy to distribute five kilograms or more of cocaine, (2) using or carrying a firearm during and in relation to a drug-trafficking crime, and (3) possession of a firearm by a convicted felon. According to the statement of facts in the subsequent reported appellate decision (see United States v. Carson, 9 F.3d 576, 579-81 (7th Cir. 1993)), defendant and several other individuals were involved in the drug trade.

In the spring of 1990, a confidential informant notified federal agents about the drug trafficking, which triggered a six-month investigation. Finally, on November 30, 1990, a controlled sale of cocaine was organized. Federal agents began surveillance and watched as the informant and the various individuals met at several different locations throughout the day exchanging drugs and cash. As for defendant’s role, he provided $50,000 to one of the buyers. When all of the parties (except for defendant) arrived at the designated location, each was arrested.

Agents confiscated five kilograms of cocaine, and in some of the vehicles, the agents found loaded weapons. Defendant was arrested a few hours later with $1,500 in his wallet and bundled cash totaling $5,000 in his truck. On May 30, 1991, a jury convicted defendant on all counts. On June 5, 1992, the federal court sentenced defendant to 235 months in prison. He appealed, and his convictions and sentence were affirmed. See Carson, 9 F.3d at 592-93.

On August 5, 1991, after defendant was convicted on his federal charges but before he was sentenced thereon, a Calhoun County jury convicted him of two counts of attempt (first degree murder). On October 2, 1991, defendant filed a posttrial motion, challenging the strength of the evidence, the admission of certain jury instructions, the State’s closing argument, and several evidentiary rulings. The trial court denied defendant’s motion.

On October 4, 1991, the trial court sentenced defendant to two consecutive 15-year prison terms, finding specifically that Dorothy had been “severely injured.” The court further noted as follows: “This [c]ourt is not taking into consideration the federal offense at all or what sentence they might hand down. That has nothing to do — it doesn’t relate to this proceeding at all. This is a totally separate proceedings [sic] in the Circuit Court of Calhoun County. What happens in the Federal Court is a total other ball[ ]game.” After sentencing, defendant was remanded to the custody of the federal marshal.

On October 11, 1991, the trial court entered the sentencing judgment, which stated as follows: “Mittimus is stayed until defendant is released from custody of the United States Department of Justice.” Defendant appealed. On August 13, 1992, this court affirmed defendant’s convictions and sentences. See People v. Flaugher, 232 Ill. App. 3d 864, 598 N.E.2d 391 (1992).

On September 7, 1993, defendant filed his first pro se postconviction petition, alleging, inter alia, that the trial court erred by imposing consecutive prison terms because the evidence at trial did not reveal that either victim suffered severe bodily injury justifying consecutive terms. The court appointed counsel to represent defendant and, after a hearing, “dismissed” the petition. Defendant timely appealed the court’s order. This court affirmed the dismissal. See People v. Flaugher, No. 4—94—0652 (September 15, 1995) (unpublished order under Supreme Court Rule 23).

On March 12, 1997, defendant filed his second pro se postconviction petition, alleging, inter alia, the ineffective assistance of trial, postconviction, and appellate counsel. On June 7, 1997, the trial court dismissed defendant’s petition as frivolous and patently without merit. On June 22, 2005, defendant filed his third pro se postconviction petition, alleging the trial court had failed to present the issue of whether the victims suffered great bodily harm to a jury for consideration before imposing consecutive prison terms on those grounds. He claimed his sentencing judgment was void.

On January 12, 2007, the court summarily dismissed defendant’s petition, finding that the law set forth in Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 455, 120 S. Ct. 2348, 2362-63 (2000) (any factor used as a reason to increase a sentence must be submitted to a jury and proved beyond a reasonable doubt) could not be applied retroactively. Defendant appealed, filing a motion for remand, for the appointment of counsel and for further proceedings. This court allowed the motion and dismissed the appeal. See People v. Flaugher, No. 4—07—0154 (May 25, 2007) (appeal dismissed on appellant’s motion).

On April 24, 2008, defendant, through counsel, filed a motion for declaratory judgment (the subject of this appeal), claiming that, at the time he was sentenced in this matter to two consecutive 15-year prison terms, he had not yet been sentenced on his pending federal charges. The sentencing court had stayed the execution of the sentencing judgment until defendant was released from federal custody. Citing People v. McNeal, 301 Ill.

App. 3d 889, 891, 704 N.E.2d 793, 795 (1998) (“a sentence may not be ordered to run consecutively with a sentence not yet imposed”), defendant argued that the court was prohibited from ordering that his consecutive state terms would run consecutive to his federal sentence — a sentence that had not yet been imposed at the time he was sentenced in state court. Without citing statutory authority, defendant sought a declaratory judgment that his state sentences were to run concurrently to his federal sentence.

On June 12, 2008, defendant was released from federal prison, and five days later, the trial court conducted a hearing on defendant’s motion for declaratory judgment. In his opening statement, defendant’s counsel claimed this motion was one seeking clarification “as to the sentence that was imposed against [defendant] back on October 4th of 1991.” He argued that the sentencing stay effectively ordered defendant’s sentences to run consecutively to his federal sentence, an impermissible result when he had not yet been sentenced on his pending federal conviction. See McNeal, 301 Ill.

App. 3d at 891, 704 N.E.2d at 795. The State did not object to the trial court’s subject-matter jurisdiction. Instead, the State claimed defendant should now begin serving his consecutive 15-year prison terms as he had been released from federal prison into state custody. Defendant presented the testimony of Wynona Hughes (his sister), Edward Flaugher (his nephew), Henry Flaugher (his brother), Curtis Flaugher (his son), Donna Flaugher (his wife), and defendant himself.

They testified that defendant was not a threat to society, not at risk of committing any further crimes, and had served his federal sentence without incident. Defendant accepted responsibility and testified that he regretted shooting Thomas and Dorothy. Each witness blamed Thomas for the deterioration of the relationship between defendant and him, which had escalated into the shooting incident. The State presented no evidence.

During his closing argument, defendant’s attorney argued that “17 years for what he has done is more than enough.” Counsel asked the trial court to “direct these sentences be concurrent with the federal sentence, accordingly.” On the other hand, the prosecutor argued that the sentencing court specifically found that it was not considering the federal offense at all as a factor in imposing consecutive sentences. Rather, the prosecutor argued, the court imposed the consecutive terms after specifically finding that the nature of the victim’s injuries warranted such terms.

The prosecutor asked for a continuance of the hearing for an opportunity to present the testimony of the victims. The court granted the State’s request for a continuance. On June 24, 2008, the continued hearing resumed. The State called Thomas Flaugher. He referred to defendant as his “ex-brother” and testified that he still feared defendant even though he has had no contact with him or his family in 15 years. Defendant had also shot at Thomas approximately a month and a half before the incident that resulted in the criminal charges.

He said he “continue[d] to express concern about [defendant’s] release.” He said defendant had not contacted him to express his remorse or to apologize. On cross-examination, defendant’s counsel had Thomas read portions from the trial transcript where, during his testimony, Thomas admitted that he had threatened to kill defendant and had slapped Curtis, defendant’s son, prior to the shooting incident. Thomas testified that, as a result of the shooting, he suffered a pellet wound on his arm, which did not require surgery.

Dorothy Flaugher testified that defendant shot her in the head, arm, hand, and chest with shotgun pellets, causing injuries requiring hospitalization. She said she was still afraid for her personal safety. She testified that, after the shooting, Curtis had exhibited threatening behavior toward her, such as following her extremely closely in his vehicle and shooting toward her house. Defendant had not apologized to her either. In rebuttal, defendant called Curtis Flaugher, who denied following or stalking Dorothy or firing a weapon toward her home.

He said prior to the shooting incident, Thomas had assaulted him twice — once by pulling him off of his four wheeler and another time by striking him in the face. He was 16 years old at the time. Donna Flaugher testified in rebuttal that the shooting incident stemmed from Thomas’s violence toward Curtis, the sale of certain personal property, and the named owners of certain real property. She said these circumstances no longer exist; and therefore, defendant would not be a threat to the victims.

Defendant testified that prior to the incident, he and Thomas did not have any personal problems with each other and had never been physically violent toward each other. He said he is no longer a threat to Thomas or Dorothy. He testified that he was currently 62 years old. He received an additional three years on his federal sentence as a result of the Calhoun County convictions. He was expected to serve an additional 10 years of supervised release. If he were released from state custody, he would secure employment and comply with all restrictions of his federal supervised release.

He asked the trial court for a chance to “become a viable citizen and a husband and father,” stating as follows: “Whenever this ended, whenever the altercation finally come [sic] to a head, I was mentally and physically, I was destroyed, and I’m sorry I did it, and I couldn’t help it. I wasn’t mentally right.” Upon questioning by the trial court, defendant testified that he “will never do — [he] will never be involved in anything illegal in [his] life again, ever.” He again expressed his remorse for the incident.

After considering the testimony and arguments of counsel, the trial court noted, and the parties agreed, that

section 5 — 8—4(

b) of the Unified Code of Corrections (Unified Code) (Ill. Rev. St'at. 1991, ch. 38, par. 1005 — 8—4(b)) (“The court shall not impose a consecutive sentence except as provided for in subsection (

a) unless, having regard to the nature and circumstances of the offense and the history and character of the defendant, it is of the opinion that such a term is required to protect the public from further criminal conduct by the defendant, the basis for which the court shall set forth in the record”) governed the decision. In announcing its decision, the court found as follows: “Now, having said that, said all of that, we are now 17 years later, 17 years where it’s undoubtedly you have been sitting in a federal cell during that time.

I have to weigh and measure what you told me on the witness stand I should believe that the public should believe *** that they’re safe and will remain safe in the course of this. What I look to in the process of making that determination today, as compared to 17 years ago, is that, in fact, you went into the federal system and you not only sat in a cell, but you also had no problems, other than the one incident that was, that you testified to, the one incident while in custody. You sought education, got education in the process of doing that.

You kept contact with your family, and I’m going to address that here in just a very brief moment.

How it would have appeared from the public perspective, my perspective, had you taken the time, whether it be one year, five years, 10 years down the road, 15 years down the road to have just written one line and addressed a letter to each of your brother and your ex-sister-in-law and said [‘]I’m sorry. [’] ^ $ *** [T]he thing that probably affects me as much as anything is the fact that there’s a lady sitting behind you who for 17 years, 17 years, has believed in you, has believed that there is the right character factors in you that when everything else is revealed, spread apart, that you won’t do this again, that the two of you can have a meaningful life.

I believe she is sincere, and I believe that she is not diluting [sic] herself, and in large part[,] I base the decision that I am going— about to tell you about, and I think you can see what it is, on that. Mr. Flaugher, if I’m wrong, it will weigh heavy on me. It truly will because I take my job seriously here. And it will weigh heavy in the sense that I have misread. I have misread, and that’s something that I try very hard [not] to do, and I misread you, and I misread the things that are going on around you at this point in time.

So, for the reasons stated, I find that under the statute this should be a concurrent sentence, that you should receive credit for the time served in the Federal Department of Corrections, that you will be committed to the Illinois Department of Corrections so that they can administratively process you in and then, in turn, if they — as they find their credit, apply the credit that the court has directed, that you should in turn be released on the three[-]year mandatory supervised release.

You are not going free today, but it’s my belief that that will take place shortly.” The court indicated that defendant would receive credit for time spent in federal custody beginning May 30, 1991. On June 24, 2008, the trial court entered a written order finding as follows: “Cause coming on for hearing on defendant[’]s motion to re[ ]consider sentence herein. Evidence presented. Court finds said sentence should [run] concurrent with federal sentence heretofore entered. Court finds further protection of the public is not necessary and defendant poses no threat to safety of other persons.

That credit should be granted for time served in federal prison and defendant should be remanded to Illinois] Department] of Corrections for computation of good time since May 30, 1991, mittimus to issue, until June 12, 2008[,] through June 24, 2008[,] as corrected.” (Emphasis in original.) On June 24, 2008, an amended sentencing judgment was entered indicating that defendant had been sentenced to two 15-year prison terms to be served concurrently to each other and to defendant’s federal sentence. This appeal followed. II.

ANALYSIS The primary issue presented in this appeal is whether the trial court had jurisdiction in 2008 to reconsider the sentence imposed upon defendant in 1991. The State first argues that the court did not have jurisdiction because defendant’s motion was untimely, and therefore, the June 2008 amended sentencing judgment is void. A trial court normally loses subject-matter jurisdiction 30 days after a sentence is imposed. People v. Flowers, 208 Ill. 2d 291, 303, 802 N.E.2d 1174, 1181 (2003). However, pursuant to

section 5 — 8—1(

f) of the Unified Code (730 ILCS 5/5 — 8—1(f) (West 2006)), a

section which specifically addresses the issue presented, the court was revested with subject-matter jurisdiction and the authority to reconsider defendant’s 1991 sentence.

Section 5 — 8—1(

f) of the Unified Code (730 ILCS 5/5 — 8—1(f) (West 2006)) provides as follows: “A defendant who has a previous and unexpired sentence of imprisonment imposed by an Illinois circuit court for a crime in this [s]tate and who is subsequently sentenced to a term of imprisonment by another state or by any district court of the United States and who has served a term of imprisonment imposed by the other state or district court of the United States, and must return to serve the unexpired prior sentence imposed by the Illinois [c]ircuit [c]ourt may apply to the court which imposed sentence to have his sentence reduced.

The circuit court may order that any time served on the sentence imposed by the other state or district court of the United States be credited on his Illinois sentence. Such application for reduction of a sentence under this subsection (

f) shall be made within 30 days after the defendant has completed the sentence imposed by the other state or district court of the United States.” In People v. Bainter, 126 Ill. 2d 292, 296, 533 N.E.2d 1066, 1067 (1989), the supreme court addressed the issue of whether the legislature violated the separation-of-powers clause of the Illinois Constitution (Ill. Const. 1970, art. II, §1) by enacting subsection (f) — a

section which appears to revest the trial courts with jurisdiction over otherwise final judgments. The court held that the

section was constitutional and did not violate separation of powers. Bainter, 126 Ill. 2d at 305, 533 N.E.2d at 1071. The legislature properly exercised its authority in enacting subsection (f). According to the court, the legislature realized that “special circumstances may arise in which the interests of finality are lessened and the circuit court should be re-vested with jurisdiction over a previously determined matter.

The subsequent imposition of a sentence in another jurisdiction is the type of circumstance that may warrant the expansion of the circuit court’s jurisdiction.” Bainter, 126 Ill. 2d at 305, 533 N.E.2d at 1071. Such is the case here. The subsequent imposition of defendant’s federal sentence was a “special circumstance” that allowed the trial court to regain jurisdiction over the sentence imposed 17 years earlier. Pursuant to the relevant statute, defendant had 30 days after he completed his federal sentence to seek the relief he requested in state court. See 730 ILCS 5/5 — 8—1(f) (West 2006).

Defendant filed his motion two months prior to his release, and the court began conducting the hearing five days after his release. The court entered its order within 30 days of defendant’s release from federal prison. We find his motion was timely and note that the State never raised a timeliness issue. Despite the fact that neither defendant’s motion nor the trial court’s ruling on the motion relied on

section 5 — 8—1(f) (730 ILCS 5/5 — 8—1(f) (West 2006)), we nevertheless hold that the court had the proper authority to consider the matter. The court allowed defendant to receive credit on his Illinois sentence for time served in federal prison — the exact remedy contemplated in

section 5 — 8—1(f). See 730 ILCS 5/5 — 8—1(f) (West 2006). According to the Unified Code, a defendant has two opportunities to seek the relief he requested, that of having the trial court review a state-court sentence upon the subsequent imposition of a foreign sentence. See 730 ILCS 5/5 — 8—4(a), 5 — 8—1(f) (West 2006); see also Bainter, 126 Ill. 2d at 299-305, 533 N.E.2d at 1068-71.

Section 5 — 8— 4(

a) allows a trial court to order that an Illinois sentence run concurrently with a subsequently imposed foreign sentence if the defendant applies for such relief within 30 days after the defendant’s foreign sentence is finalized. 730 ILCS 5/5 — 8—4(a) (West 2006). However,

section 5 — 8—1(f), as previously stated, allows a trial court to award credit on an Illinois sentence for time served in a foreign penitentiary if the defendant applies for such relief within 30 days after he has completed his foreign sentence. 730 ILCS 5/5 — 8—1(f) (West 2006). Based solely on the timing of defendant’s motion in this case, we find the trial court proceeded under

section 5 — 8—1(f), rather than

section 5 — 8—4(a), and properly considered the matter presented. “When a term of imprisonment is imposed on a defendant by an Illinois circuit court and the defendant is subsequently sentenced to a term of imprisonment by another state or by a district court of the United States, the Illinois circuit court which imposed the sentence may order that the Illinois sentence be made concurrent with the sentence imposed by the other state or district court of the United States.

The defendant must apply to the circuit court within 30 days after the defendant’s sentence imposed by the other state or district of the United States is finalized.” 730 ILCS 5/5— 8 — 4(a) (West 2006). We find the trial court had the statutory authority pursuant to

section 5 — 8—1(

f) of the Unified Code (730 ILCS 5/5 — 8—1(f) (West 2006)) to consider whether defendant should receive credit for time served in federal prison against his state-imposed sentence. However, we find no authority in the Unified Code that would allow the court to modify defendant’s Illinois sentence as imposed, from two consecutive 15-year prison terms to two concurrent 15-year prison terms. The authority to “reduce” a defendant’s sentence as set forth in

section 5 — 8—1(

f) refers only to the court’s discretion of allowing a defendant to receive credit for time spent incarcerated in a foreign prison. See 730 ILCS 5/5 — 8—1(f) (West 2006). Neither this

section nor any other

section in the Unified Code authorizes a court to reduce the state sentence itself, beyond 30 days from the date the sentence was imposed. See 730 ILCS 5/5 — 8—1(c) (West 2006) (the court may reduce a sentence upon a defendant’s motion filed within 30 days of the imposition of the sentence). Because Judge Pezman made a finding that defendant’s conduct resulted in great bodily harm, defendant’s two sentences were required to run consecutively to each other.

In October 1991, the sentencing court ordered defendant’s two state sentences to run consecutively to each other due to the severe bodily injury suffered by Dorothy. See 111. Rev. Stat. 1991, ch. 38, par. 1005 — 8—4(a). That sentencing judgment was not amended within 30 days of its entry, and it remains in force today. Therefore, we find that the court erred in ordering defendant’s two consecutive 15-year prison terms for attempt (first degree murder) to run concurrently with each other. The court lacked the jurisdiction to enter that order.

Moreover, while the trial court did have jurisdiction to consider whether defendant should be given credit on his Calhoun County sentences for time served in federal prison, the State claims that the court was without discretion to reconsider the sentence in such a manner because

section 5 — 8—4(

h) of the Unified Code (730 ILCS 5/5 — 8—4(h) (West 2006)) mandated that the three sentences (state and federal) be imposed to run consecutively. Subsection (

h) provides as follows: “If a person charged with a felony commits a separate felony while on pre[ ]trial release or in pretrial detention in a county jail facility or county detention facility, the sentences imposed upon conviction of these felonies shall be served consecutively regardless of the order in which the judgments of conviction are entered.” 730 ILCS 5/5 — 8—4(h) (West 2006). As the State admits, no published decisions apply to the mandatory-consecutive-sentencing provision of

section 5 — 8—4(

h) to federal felonies committed while on pretrial release on a state charge. However, we note that the supreme court has applied the provisions of

section 5 — 8—4(

h) when a subsequent felony was committed in another state. See People v. Clark, 183 Ill. 2d 261, 266, 700 N.E.2d 1039, 1042 (1998) (trial court lacked authority to sentence the defendant to the agreed-upon six-year prison term as a concurrent sentence when he committed a felony in the State of Missouri while on pretrial release). Defendant claims

section 5 — 8—4(h) (730 ILCS 5/5 — 8—4(h) (West 2006)) “is not applicable because nothing in the record supports the fact that the [defendant committed an offense while on bond as well as the fact the federal charges fall under federal sentencing guidelines.” According to Carson, 9 F.3d at 580-81 (the Seventh Circuit’s opinion from defendant’s federal case), defendant committed the federal felonies while on pretrial release in the case sub judice. Further, defendant provides no authority for the second part of his argument that the statute does not apply because federal sentencing guidelines apply.

The law is clear that sentences that are statutorily mandated to run consecutively are void if they have been ordered to run concurrently.

Indeed, this court recently noted as follows: “Where sentences are mandatorily consecutive and the defendant is sentenced to concurrent sentences, the sentences are void and the remedy is to remand for imposition of consecutive sentences. [Citation.] When a trial court’s decision to impose concurrent prison terms is deemed void, the appellate court has the authority to correct the sentence and the appellate court is not barred from doing so by supreme court rules limiting the State’s right to appeal or prohibiting the appellate court from increasing a defendant’s sentence. [Citation.] Thus, we can, if we so desire, remand simply for the trial court to amend its sentencing order to make sentences already given consecutive. [Citation.]” People v.

Davison, 378 Ill. App. 3d 1010, 1018, 883 N.E.2d 648, 655 (2008), rev’d on other grounds, 233 Ill. 2d 30, 906 N.E.2d 545 (2009). See also People v. Arna, 168 Ill. 2d 107, 113, 658 N.E.2d 445, 448 (1995). Defendant was released on bond on the current charges on July 10, 1990. He was arrested for federal charges on November 30, 1990, as a result of a drug-trafficking sting operation. The federal authorities -witnessed defendant participating in the operation on the day of his arrest. Defendant committed the separate federal felony while on pretrial release on his state court charges.

The chronological order of the entry of the convictions and respective sentences is of no consequence to the applicability of

section 5 — 8—4(h). See People v. Williams, 184 Ill. App. 3d 1094, 1096, 540 N.E.2d 832, 833 (1989). Pursuant to the plain language of

section 5 — 8—4(

h) of the Unified Code (730 ILCS 5/5 — 8—4(h) (West 2006)), defendant was subject to mandatory consecutive sentences. In relying on

section 5 — 8—4(b) (finding protection of public is not necessary and defendant poses no threat to safety of other persons) to find defendant’s sentences should run concurrently to each other and concurrently to the federal sentence, the trial court erred, because this provision only applies to nonmandatory consecutive situations. Public safety or other factors are not considered where the statute mandates imposition of consecutive sentences. Because Judge Pezman made a finding of great bodily harm, consecutive sentences were mandated on the state charges.

Because defendant was on pretrial release when he committed the federal charge, consecutive sentencing was mandated for that offense also. Thus

section 5 — 8—4(

b) had no application here. We vacate the trial court’s amended sentencing judgment and remand for the entry of an amended judgment, making the state sentences consecutive to each other and consecutive to his federal sentence, with no credit for time served in federal custody. III. CONCLUSION For the foregoing reasons, we vacate the trial court’s June 24, 2008, amended sentencing judgment and remand for the entry of an amended judgment in accordance with our decision set forth above. Order vacated and remanded with directions. POPE, J., concurs.