My conclusion is buttressed by the fact that in interpreting identical tolling provisions, other jurisdictions have concluded that temporary absences from the state, such as for business or pleasure, are not periods when the defendant is "not usually and publicly resident" and do not toll the statute of limitations. See People v. Edwards, 436 N.E.2d 727, 730 (Ill.App. 1982); State v. Williams, 31 A.2d 369, 370 (N.H. 1943); People v. Guariglia, 65 N.Y.S.2d 96, 100 (N.Y. 1946). The record before this Court is devoid of any facts bearing on whether the defendant was "usually and publicly resident" in Massachusetts during the periods at issue.

In addition, other courts have held that similar tolling provisions activate even if the defendant did not flee the state to avoid prosecution, openly resided in another state, or did not attempt to conceal his whereabouts. People v. Edwards, 106 Ill. App.3d 918, 436 N.E.2d 727 (1982); State v. Houck, 240 Kan. 130, 727 P.2d 460 (1986); Kubus v. Swenson, 242 Minn. 425, 65 N.W.2d 1177 (1954); State v. Ansell, 36 Wn. App. 492, 675 P.2d 614 (1984). Sher's counsel contends he is not arguing that the tolling provision is unconstitutional on its face. Rather, he argues that the provision may be unconstitutionally applied in this case.

We thus find this was an admission of the ultimate fact that defendant was guilty of the crimes charged and thereby constituted a confession. People v. Edwards, 106 Ill. App. 3d 918, 923 (1982) (a statement constitutes a confession if it contains an admission of facts which necessarily or directly imply all of the necessary elements of the offense in issue). The written statement attributed to defendant, therefore, provides persuasive evidence of defendant's guilt.

Section 114-5(d) of the Code expressly provides a judge other than the one against whom the allegation is made should rule on the motion. (Ill. Rev. Stat. 1991, ch. 38, par. 114-5(d); see People v. Edwards (1982), 106 Ill. App.3d 918, 923, 436 N.E.2d 727, 730-31.) If a motion for substitution of judge is improperly denied, all subsequent action by the trial judge is void.

See, e.g., State v. Ansell, 675 P.2d 614 (Wash.Ct.App. 1984); People v. Edwards, 436 N.E.2d 727 (Ill.App. 1982). The Ansell court noted that it adopted the majority view that mere absence is enough to toll a statute of limitation similar to Washington's, regardless of intent to evade justice.

( People v. Kirk (1986), 141 Ill. App.3d 971, 973, 491 N.E.2d 78, 80.) The requisite substantial compliance exists. We also note that in People v. Edwards (1982), 106 Ill. App.3d 918, 436 N.E.2d 727, we found that our earlier decision in Knowles was effectively overruled by People v. Cox (1980), 82 Ill.2d 268, 412 N.E.2d 541, and that a belief by the court that probation would deprecate the seriousness of the offense is a justifiable reason for denying probation. • 14 Similarly, we find no abuse of discretion with the imposed sentence.

• 1, 2 Nonjurisdictional issues may not normally be argued on appeal unless first raised and preserved in the trial court. ( People v. Pickett (1973), 54 Ill.2d 280, 296 N.E.2d 856.) Failure to challenge the sufficiency of the evidence at the trial level normally acts as a waiver of the issue on appeal. (See People v. Edwards (1982), 106 Ill. App.3d 918, 436 N.E.2d 727.) As discussed later, the State was required to prove the defendant's prior conviction for retail theft in order to secure a conviction for felony retail theft.