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People v. Dismore

OCTOBER 31, 1975.

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

v.

CHARLES DISMORE, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Jefferson County; the Hon. ALVIN LACY WILLIAMS, Judge, presiding.

MR. JUSTICE CARTER DELIVERED THE OPINION OF THE COURT:

This is a consolidated appeal from judgments entered after negotiated pleas of guilty in four separate cases by the Circuit Court of Jefferson County. The defendant, Charles Dismore, was adjudged guilty of the offenses of deceptive practices, unlawful possession of instruments adapted for the use of controlled substances or cannabis by subcutaneous injection, burglary, and seven counts of forgery. The court sentenced the defendant in accordance with the plea agreement to one year, to a fine of $65, and to costs in the amount of $22.40 on each of the misdemeanor charges. For the burglary, and for each of the seven counts of forgery, the defendant received a sentence of two to six years' incarceration. The record indicates that all the sentences imposed were to run concurrently.

The defendant raises the following issues on appeal: (1) whether the conviction for deceptive practices was void because the complaint purported to allege an offense which occurred on October 3, 1973, in violation of a statute (Ill. Rev. Stat., 1973, ch. 38, § 17-1(e)1) that had been repealed on October 1, 1973; (2) whether the convictions on the seven counts of forgery are void for reason that none of the counts charge the defendant with a criminal offense; (3) whether the trial court failed to comply substantially with the requirements of Illinois Supreme Court Rule 402; (4) whether the judgments in all four cases should be reversed because they do not conform with the court's pronouncements on January 19, 1974, or with the negotiated plea agreement, or because they did not accurately reflect the judgments of the court; (5) whether the court complied with the requirements of Supreme Court Rule 401(a) regarding waiver of counsel at the sentencing hearing.

On May 3, 1974, the defendant was brought into court pursuant to an arrest warrant served on him in response to the seven count forgery indictment. Upon being offered appointed counsel by the judge, the defendant informed the court that he would retain a private lawyer. On June 17, 1974, the defendant appeared twice in open court. At his first appearance, for arraignment on the burglary charge, the defendant was again offered counsel. The court continued the arraignment for the defendant to retain counsel until June 20. However, later that same day, the defendant appeared before another judge and requested to enter negotiated pleas of guilty in all four cases. The misdemeanor cases, deceptive practices and unlawful possession of drug paraphernalia, were charged by complaint. The forgery charges, consisting of seven counts, were by indictment, and the burglary charge was on a complaint to which the defendant waived indictment.

The defendant first contends that his conviction for deceptive practices was void because the complaint to which he entered his plea purported to allege an offense which occurred on October 3, 1973, in violation of a statute (Ill. Rev. Stat. 1973, ch. 38, § 17-1(e)1) that had been repealed on October 1, 1973. The criminal complaint charged that on October 3, 1973, the defendant committed the offense of deceptive practices in that:

"[he] did with the intent to defraud, knowingly obtain without the consent of Guy Randall, property of Wayne Shull, doing business as Shulls' West Shell Service, 3401 Broadway, Mt. Vernon, Illinois, being gasoline, having a total value of less than $150.00 by use of a credit card which was issued to Guy Randall, in violation of paragraph 17-1(e-1), Chapter 38, Illinois Revised Statutes."

Section 1-3 of the Criminal Code of 1961 provides in pertinent part:

"No conduct constitutes an offense unless it is described as an offense in this Code or in another statute of this State. * * *."

The complaint in the instant case charges the defendant with the crime of deceptive practices in violation of "paragraph 17-1(e-1), Chapter 38, Illinois Revised Statutes" and alleges the date of the offense as October 3, 1973. Section 17-1 of the Criminal Code of 1961 had been repealed on October 1, 1973. Effective October 1, 1973, however, the Illinois Credit Card Act (Ill. Rev. Stat. 1973, ch. 121 1/2, §§ 601-624) contained the following provision:

"A person who, with intent to defraud either the issuer, or a person providing money, goods, property, services or anything else of value, or any other person, (i) uses, for the purposes of obtaining money, goods, property, services or anything else of value a credit card obtained or retained in violation of this Act or without the cardholder's consent, or a credit card which he knows is counterfeited, or forged, or expired, or revoked, or (ii) obtains money, goods, property, services or anything else of value by representing without the consent of the cardholder that he is the holder of a specified card or by representing that he is the holder of a card and such card has not in fact been issued, is guilty of a Class A misdemeanor if the value of all money, goods, property, services, and other things of value obtained in violation of this section does not exceed $150 in any 6-month period; * * *." (Ill. Rev. Stat. 1973, ch. 121 1/2, § 608.)

Although the complaint certainly did not describe conduct that constituted an offense under the Criminal Code, it did describe acts that constituted an offense under the newly enacted Credit Card Act. For this reason, the State submits that the defect here of citing the wrong statute in the complaint was merely a formal defect which did not prejudice the defendant. We agree.

• 1, 2 The fact that a criminal complaint includes an incorrect citation of the criminal statute violated does not require reversal of a defendant's conviction, unless the defendant was prejudiced by the miscitation. (See People v. Aprile, 15 Ill. App.3d 327; cf. People v. Pronger, 48 Ill. App.2d 477.) In the instant case the defendant neither claims nor does he show any prejudice resulting from the State's error in citation. He was apprised of all the elements of the offense intended to be charged. Having pleaded guilty, he was not hampered in the preparation of a defense. Furthermore, he could plead the judgment entered on his plea as a bar to any further prosecution of the same offense. (People v. Pruden, 25 Ill. App.3d 47.) The fact that former section 17-1(e)(1) of the Criminal Code was removed from the Code, reworded, and incorporated into the Credit Card Act does not give rise to violation of any of the defendant's statutory or constitutional rights. Although the defendant was not perfectly charged with the offense of deceptive practices, he was properly charged.

The defendant next contends that the forgery indictment is fatally defective because it does not allege a crime under section 17-3 of the Criminal Code. He argues that either the instant documents were not capable of defrauding or they were not capable of defrauding on their face and insufficient extrinsic facts were averred to make them apparently capable of defrauding. The indictment on each of its seven counts purports to charge defendant with a separate offense of forgery pursuant to section 17-3(a)(1) of the Criminal Code of 1961. Each of the counts recite that the defendant, "with the intent to defraud, did knowingly make a document apparently capable of defrauding another, in that it purported to have been made by another" (John Ralston in Counts II, III, IV, V and VI, and James Ralston in Counts I and VII). Then the counts of the indictment vary as follows:

COUNT I "* * * said document being a Guest Registration card for Room 134 of the Holiday Inn, Mt. ...


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