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People v. Henderson

OPINION FILED OCTOBER 26, 1976.

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

v.

RENEE HENDERSON, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Jefferson County; the Hon. WILLIAM G. EOVALDI, Judge, presiding. MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

On April 3, 1975, a complaint was filed charging defendant, Renee Henderson, with having committed an offense of forgery on April 2, 1975, in that she delivered a forged prescription form to a pharmacy in violation of section 17-3 of the Criminal Code (Ill. Rev. Stat., ch. 38, par. 17-3(a)(2)). On the day the complaint was filed, defendant was brought before the court, waived counsel, waived indictment, entered a negotiated plea of guilty to the charge of forgery, and was sentenced to a term of imprisonment of one to three years. Defendant has appealed and raises three issues: (1) whether defendant's waiver of counsel was fatally defective; (2) whether defendant's waiver of indictment was fatally defective; and (3) whether the passage of the Illinois Controlled Substances Act (Ill. Rev. Stat., ch. 56 1/2, par. 1100 et seq.) preempted, in toto, prosecution under section 17-3 of the Criminal Code (Ill. Rev. Stat., ch. 38, par. 17-3) for delivery of a forged prescription form. The State has confessed error with respect to the first two issues; we need, therefore, discuss only the third issue raised.

The factual basis for defendant's plea, as recited by the State's Attorney, was the following. On April 2, 1975, defendant entered a named pharmacy and tendered a prescription form to the pharmacist, which bore the forged signature of a physician. The police were called, and when they arrived defendant ran. Later that day defendant made a statement to the police in which she admitted that she knew that the prescription was not legitimate. According to the complaint filed in this case the drug which defendant attempted to acquire by means of the forged prescription was "preludin," a form of phenmetrazine, a controlled substance under section 208(b) of the Controlled Substances Act (Ill. Rev. Stat., ch. 56 1/2, par. 1208(b)).

• 1 Defendant argues that "the Illinois legislature has determined that offenses involving prescriptions for drugs, and more specifically the presentation of a forged prescription form in order to obtain drugs, are cognizable under the Controlled Substances Act, and not under the Criminal Code" and that, therefore, the State was "without authority to charge the offense" of forgery and "the court was without authority to enter a judgment of conviction" for the offense. We cannot agree.

Section 17-3 of the Criminal Code provides:

"(a) A person commits forgery when, with intent to defraud, he knowingly:

(1) Makes or alters any document apparently capable of defrauding another in such manner that it purports to have been made by another or at another time, or with different provisions, or by authority of one who did not give such authority; or

(2) Issues or delivers such document knowing it to have been thus made or altered; or

(3) Possesses, with intent to issue or deliver, any such document knowing it to have been thus made or altered." (Ill. Rev. Stat., ch. 38, par. 17-3(a).)

In discussing section 17-3 of the Criminal Code, we noted in People v. Merchant, 5 Ill. App.3d 636, 638, 283 N.E.2d 724, 726, that:

"In People ex rel. Miller v. Pate, 42 Ill.2d 283, 246 N.E.2d 225, the Supreme Court in considering the present forgery statute (Ill. Rev. Stat., ch. 38, sec. 17-3), commented that prior to the new Criminal Code separate statutes proscribed forgery of specified types of instruments or documents, but as presently defined in the new Criminal Code, the offense of forgery codifies and incorporates all forms of forgery into a single crime."

Forgery is referred to in section 406(b)(3) of the Controlled Substances Act, which provides:

"(b) It is unlawful for any person knowingly:

(3) to acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception or subterfuge." (Ill. Rev. Stat., ch. 56 1/2, par. 1406(b)(3).)

It is apparent from the language of this section that in the instant case no violation of this section was committed; for in the instant case defendant did not "acquire or obtain possession of a controlled substance." Rather, defendant allegedly made only an unsuccessful attempt "to acquire or ...


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