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People v. Mayberry

OPINION FILED MARCH 18, 1976.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,

v.

RICKY MAYBERRY, APPELLEE. — THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,

v.

MICHAEL HURLEY, APPELLEE.



No. 47495. — Appeal from the Circuit Court of St. Clair County; the Hon. Robert L. Gagen, Judge, presiding.

No. 47640. — Appeal from the Circuit Court of Sangamon County; the Hon. Simon L. Friedman, Judge, presiding.

MR. JUSTICE CREBS DELIVERED THE OPINION OF THE COURT:

William J. Scott, Attorney General, of Springfield, and C. Joseph Cavanagh, State's Attorney, of Springfield (Tracy W. Resch, Assistant Attorney General, of Springfield, of counsel), for the People.

Michael J. Costello, of Springfield, for appellee.

These are appeals from orders of the circuit courts of Sangamon County and of St. Clair County dismissing indictments against the defendants. Since the issues presented by the cases are virtually identical, the two cases have been consolidated for appeal.

The defendant Michael Hurley was charged in a two-count indictment with two violations of the Cannabis Control Act (Ill. Rev. Stat. 1973, ch. 56 1/2, par. 701 et seq.). The first count of the indictment alleged that the defendant committed the offense of delivery of more than 30 grams but not more than 500 grams of a substance containing cannabis in violation of section 5(d) of the Act (Ill. Rev. Stat. 1973, ch. 56 1/2, par. 705(d)). The second count alleged that the defendant committed the offense of unlawful possession of more than 30 but not more than 500 grams of a substance containing cannabis in violation of section 4(d) of the Act (Ill. Rev. Stat. 1973, ch. 56 1/2, par. 704(d)).

The defendant Ricky Mayberry was charged in separate indictments with three violations of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1973, ch. 56 1/2, par. 1100 et seq.). Each indictment charged the defendant with the offense of delivering 200 grams or more of a substance containing a derivative of barbituric acid in violation of section 401(a)(5) of the Act (Ill. Rev. Stat. 1973, ch. 56 1/2, par. 1401(a)(5)).

The circuit court of Sangamon County dismissed the first count of the indictment against Hurley on the ground that the graduated penalty provision of the Cannabis Control Act is unconstitutional. The circuit court of St. Clair County dismissed the three indictments against Mayberry, holding that the graduated penalty provision in the Controlled Substances Act constituted a violation of the due process and equal protection clauses of the United States and Illinois constitutions. Each court held that the relevant act provided for punishment based upon the amount of a "substance containing" cannabis or a controlled substance rather than upon the amount of the pure substance sought to be controlled. The courts held that that classification scheme bore no reasonable relation to the legislative purpose of the acts.

Section 5 of the Cannabis Control Act, the portion of the Act relevant to the first count against Hurley, provides that:

"It is unlawful for any person knowingly to manufacture, deliver, or possess with intent to deliver, or manufacture, cannabis. Any person who violates this section with respect to:

(a) not more than 2.5 grams of any substance containing cannabis is guilty of a Class B misdemeanor;

(b) more than 2.5 grams but not more than 10 grams of any substance containing cannabis is guilty of a Class A misdemeanor;

(c) more than 10 grams but not more than 30 grams of any substance containing cannabis is ...


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