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People v. Mccoy

OPINION FILED MARCH 18, 1976.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,

v.

LARRY MCCOY, APPELLEE.



Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County; the Hon. James M. Bailey, Judge, presiding.

MR. CHIEF JUSTICE WARD DELIVERED THE OPINION OF THE COURT:

We granted the People leave to appeal from a judgment of the appellate court (29 Ill. App.3d 601) holding that robbery is not a "crime of violence" under the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1973, ch. 91 1/2, par. 120.1 et seq.).

On December 17, 1970, the defendant, Larry McCoy, pleaded guilty in the circuit court of Cook County to an indictment for robbery and was placed on probation for 5 years. The defendant later was convicted on a theft charge, and on July 2, 1973, after a hearing, he was found to have violated the terms of his probation. At that time the defendant sought to elect to receive treatment for his drug addiction under the terms of the Dangerous Drug Abuse Act, but the judge, who was the judge who had placed him on probation, sentenced the defendant to a term of 5 to 15 years.

On the defendant's appeal the appellate court rejected the People's contention that robbery was a "crime of violence" making the defendant ineligible to elect to receive treatment under the Act. The court remanded the cause and ordered the trial court to conduct a hearing to determine whether the defendant otherwise was eligible to make the election under the Act and then to decide whether the court in its discretion would admit the defendant to the treatment program.

A basic purpose of the Dangerous Drug Abuse Act is "to provide diagnosis, treatment, care and rehabilitation for controlled substance addicts to the end that these unfortunate individuals may be restored to good health and again become useful citizens in the community." (Ill. Rev. Stat. 1973, ch. 91 1/2, par. 120.2.) Under the Act a drug addict who is charged with or convicted of a crime, and who qualifies under the terms of the Act, may elect to undergo treatment for his addiction under the supervision of the Department of Mental Health as an alternative to prosecution or probation unless "the crime is a crime of violence." The statute says in part:

"An addict charged with or convicted of a crime is eligible to elect treatment under the supervision of the Department instead of prosecution or probation, as the case may be, unless (a) the crime is a crime of violence * * *." Ill. Rev. Stat. 1973, ch. 91 1/2, par. 120.8.

As originally enacted in 1967, the Act defined "crime of violence" as follows:

"`Crime of violence' means all offenses defined as forcible felonies in Section 2-8 of the Criminal Code of 1961 except for burglary * * *." (Ill. Rev. Stat. 1969, ch. 91 1/2, par. 120.3-8.)

Section 2-8 of the Criminal Code at that time provided, and it still provides:

"`Forcible felony' means treason, murder, voluntary manslaughter, rape, robbery, burglary, arson, kidnapping, aggravated battery and any other felony which involves the use or threat of physical force or violence against any individual." (Ill. Rev. Stat. 1969, ch. 38, par. 2-8.)

Thus, as first drawn and passed, the Act included robbery in its definition of "crime of violence," and one convicted of it was not eligible to elect for treatment.

Effective January 1, 1973, however, the statutory definition of "crime of violence" was amended to read:

"`Crime of violence' means the following crimes: treason, murder, voluntary manslaughter, rape, armed robbery, arson, kidnapping, aggravated battery, and any other felony which involves the use or threat of physical force or violence against another individual." Ill. Rev. Stat. 1973, ch. 91 1/2, par. 120.3-8.

Thus, the legislature created a list of crimes for specific application in administering the provisions of the Dangerous Drug Abuse Act. The crimes on the list were nearly the same as those constituting forcible felonies under the Criminal Code, but the legislature in declaring the list of disqualifying crimes omitted burglary and selectively, we judge, substituted the specific offense of armed robbery for the more general crime of robbery. The offense of armed robbery (robbery when "armed with a dangerous weapon" ...


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