APPEAL from the Circuit Court of Peoria County; the Hon. IVAN
L. YONTZ, Judge, presiding.
MR. JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
On June 19, 1975, the Peoria County grand jury issued seven separate bills of indictment against the defendant, Robert Sanders, for the unlawful delivery of a controlled substance in violation of section 401 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1401). In five of these indictments, the defendant was accused of five separate deliveries of less than 300 grams of a substance containing methylenedioxyamphetamine (MDA). These deliveries occurred between March 15 and April 23, 1975. In addition, a separate indictment charged the defendant with the delivery of less than 200 grams of a substance containing phenmetrazene on May 21, 1975, while the seventh indictment charged that, on May 2, 1975, the defendant delivered less than 30 grams of a substance containing lysergic acid diethylamide (LSD).
Subsequently, on September 19, 1975, the defendant appeared in court, accompanied by counsel, and tendered guilty pleas to each and every one of these indictments. After admonishing the defendant in accordance with the requirements of Supreme Court Rule 402 (Ill. Rev. Stat. 1975, ch. 110A, par. 402), the court accepted the guilty pleas. Prior to this proceeding, on September 15, 1975, the trial court had explained to the defendant that there was a possibility of consecutive sentences. The trial court also noted on that occasion that the defendant had a prior conviction for the possession of cannabis and advised the defendant of his potential liability for double the usual maximum sentence. (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1408.) Following an objection by defense counsel that cannabis is not a controlled substance, the State proffered a theory that a conviction on any indictment in the present case would serve as a prior conviction to a subsequent conviction on any other indictment in this case, thereby allowing the trial court to enter a sentence of double the maximum on the latter conviction. The defense also objected to this interpretation.
After a presentence report was filed, a sentencing hearing was held on October 23, 1975. The trial court sentenced the defendant to concurrent terms of 3 1/3 to 10 years on six of the indictments. However, in the case involving the delivery of phenmetrazene, the defendant was sentenced to a concurrent term of 6 to 20 years. The former sentences represented the maximum term for a conviction of a Class 3 felony. (Ill. Rev. Stat. 1975, ch. 38, par. 1005-8-1(b)(4).) All the indictments involved Class 3 felonies. (Ill. Rev. Stat. 1975, ch. 56 1/2, pars. 1401(c), (d), 1204(d)(1),(9), and 1208(b), (c)). The greater sentence for the delivery of phenmetrazene was an enhanced sentence for a second or subsequent offense involving controlled substances. Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1408.
The only issues raised by the defendant in this appeal is whether the trial court abused its discretion in sentencing him to an enhanced term under section 408 of the Controlled Substances Act (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1408). The State offers three theories upon which it is suggested we base an affirmance.
The first suggestion may be summarily dismissed. The State argues that since the defendant could have received consecutive sentences, we should consider the trial court as having sentenced the defendant to two consecutive maximum sentences. However, the trial court does not mention consecutive sentencing, but rather relies on the power to impose an enhanced sentence under section 408. Therefore, although we mention it, we refuse to consider this suggestion by the State.
• 1 Secondly, it is argued that the prior conviction involving cannabis is an adequate basis for the enhanced sentence. We disagree. The Illinois legislature has chosen to deal separately with cannabis and controlled substances. The possession, manufacture and delivery of cannabis is proscribed in the Cannabis Control Act. (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 701 et seq.) Consequently, the Illinois Controlled Substance Act (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1100 et seq.) does not include cannabis in its schedules of controlled substances. Therefore, we must infer that cannabis was intended not to be a controlled substance in the State of Illinois. (See People v. Glidden (3d Dist. 1975), 33 Ill. App.3d 741, 338 N.E.2d 204; People v. Taylor (4th Dist. 1974), 18 Ill. App.3d 480, 309 N.E.2d 595.) This intention is borne out by the legislative declaration in section 1 of the Cannabis Control Act.
"The General Assembly recognizes that (1) the current state of scientific and medical knowledge concerning the effects of cannabis makes it necessary to acknowledge the physical, psychological and sociological damage which is incumbent upon its use; and (2) the use of cannabis occupies the unusual position of being widely used and pervasive among the citizens of Illinois despite its harmful effects; and (3) previous legislation enacted to control or forbid the use of cannabis has often unnecessarily and unrealistically drawn a large segment of our population within the criminal justice system without succeeding in deterring the expansion of cannabis use. It is, therefore, the intent of the General Assembly, in the interest of the health and welfare of the citizens of Illinois, to establish a reasonable penalty system which is responsive to the current state of knowledge concerning cannabis and which directs the greatest efforts of law enforcement agencies toward the commercial traffickers and large-scale purveyors of cannabis. To this end, this Act provides wide latitude in the sentencing discretion of the courts> and establishes penalties in a sharply rising progression based on the amount of substances containing cannabis involved in each case." (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 701.)
This statement of legislative purpose makes it clear that cannabis was intended to be treated differently than controlled substances.
"(a) Any person convicted of a second or subsequent offense under this Act may be sentenced to imprisonment for a term up to twice the maximum term otherwise authorized, fined an amount up to twice that otherwise authorized, or both.
(b) For purposes of this Section, an offense is considered a second or subsequent offense, if, prior to his conviction of the offense, the offender has at any time been convicted under this Act or under any law of the United States or of any State relating to controlled substances." (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1408.)
Although the Cannabis Control Act also provides for enhanced sentences to be awarded to persons convicted of possessing 10 to 30 grams or 30 to 500 grams of cannabis in the event the offense for which that person is convicted is a subsequent offense (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 704(c), (d)), that is not the statute under which this defendant was sentenced.
• 2 Furthermore, "subsequent offense," as defined in the Cannabis Control Act "means an offense under this Act, the offender of which, prior to his conviction of the offense, has at any time been convicted under this Act or under any laws of the United States or of any state relating to cannabis, or any controlled substance as defined in the Illinois Controlled Substances Act." (Emphasis added.) (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 703(l).) By comparing sections 408 (b) and 3(l) it is unquestioned that the legislature did not intend to include prior cannabis convictions as a basis for an enhanced penalty under the Controlled Substances Act. If that has been the legislative intent, section 408(b) would have included a reference to the Cannabis Control Act just as the Cannabis Control Act expressly includes prior convictions under the Illinois Controlled ...