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People v. Norris

MAY 14, 1975.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

BONITA LAVERNE NORRIS, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Jackson County; the Hon. EVERETT PROSSER, Judge, presiding.

MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:

The defendant, Bonita Laverne Norris, appeals from an order entered February 20, 1974, by the circuit court of Jackson County finding her guilty of two counts of deceptive practices, ordering her to pay a fine of $150 plus restitution, and sentencing her to 1 year probation.

Since the defendant challenges the sufficiency of the information under which she was charged and, subsequently, tried, we find it necessary to set forth, in full, the counts charging her with deceptive practices. The information charged the defendant with having

"committed the following offense within Jackson County, Illinois, on the 17th day of April 1972, to wit:

COUNT I

DECEPTIVE PRACTICES, in that she, with the intent to defraud and intent to obtain control over property of Main Street Boutique, 603 South Illinois, Carbondale, Illinois, did knowingly issue and deliver a check number 149 in the amount of $60.86 drawn on the First National Bank in Carbondale, Illinois, payable to the Main Street Boutique and signed as maker Bonita L. Norris, knowing that said check would not be paid by the depository in violation of Illinois Revised Statutes, 1971, ch. 38, sec. 17-1-3. committed the following offenses [sic] within Jackson County, Illinois on the 18th day of April, 1972, to wit:

COUNT II

DECEPTIVE PRACTICES, in that she with intent to defraud Zwick's Shoes, 702 South Illinois, Carbondale, Illinois, did knowingly issue and deliver a check number 150 in the amount of $39.90, drawn on the First National Bank in Carbondale, Illinois, payable to Zwick's Shoes and signed as maker Bonita L. Norris, knowing that said check would not be paid by the depository in violation of Illinois Revised Statutes, 1971, ch. 38, sec. 17-1-3."

The defendant argues, in particular, that "[b]oth counts of the information charging defendant with deceptive practices were void for failure to allege an injured party capable of being defrauded." In support of this argument the defendant cites People v. Greer, 18 Ill. App.3d 617, 310 N.E.2d 391 (abstract opinion), and People v. Tenen, 132 Ill. App.2d 786, 270 N.E.2d 179. We find it unnecessary to review these authorities in view of the supreme court's more recent decision of People v. Mahle, 57 Ill.2d 279, 312 N.E.2d 267, which we find dispositive. In defendant's reply brief she "acknowledges" People v. Mahle, and attempts to distinguish it on the grounds that the conviction in Mahle resulted from a guilty plea to a charge of deceptive practices by delivery of a draft with intent to obtain control over the property of another, whereas the conviction in the instant case resulted from a bench trial. We find this argument unpersuasive. Notwithstanding the waiver consequences of a guilty plea the supreme court in Mahle was compelled to examine the informations and determine if they were sufficient to vest the trial court with jurisdiction since jurisdictional defects cannot be waived. Consequently, we can see no reason to restrict the relevant aspects of Mahle to guilty plea situations.

In Mahle, our supreme court concluded its review of an argument identical to the one raised by the defendant by stating;

"While the informations might have more fully described the Streator Car Wash and Marmion's Sinclair Service as individuals, doing business as a partnership, or as some other business entity, it seems an exercise of futility to argue that they are not some form of `person' as defined by statute, or that the defendant was unable by reason of the charge to prepare his defense, or that the identity of the victims was so defective as not to permit an acquittal or a conviction to be pleaded as a bar to a subsequent prosecution for the same offense. We do not find the Hill or Tenen cases persuasive in this regard." (57 Ill.2d 279, 283.)

See also People v. Curtis, 22 Ill. App.3d 4, 316 N.E.2d 557.

• 1 While we believe that adherence to Mahle requires our rejection of the defendant's principal argument, we are compelled to review the instant information to determine if each count is otherwise sufficient to vest the trial court with jurisdiction. Although not raised as an issue by defendant and, in fact, only mentioned as a parenthetical aside, we find it necessary to address the following statement contained within defendant's brief: "(Moreover, in ...


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