APPEAL from the Circuit Court of Montgomery County; the Hon.
DON BEANE, Judge, presiding.
MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
The circuit court of Montgomery County entered orders granting defendant's motions to dismiss six complaints, each charging a violation of the deceptive practices statute (Ill. Rev. Stat. 1975, ch. 38, par. 17-1(d)). The State appealed in each case and we have consolidated all six causes for review.
The issues presented are: (1) whether all deceptive practice charges based on acts occurring within a 90-day period and totaling more than $150 must be alleged in a single charge; and (2) whether, if not so charged, a guilty plea to one of the charges acts as a bar to prosecution on the remaining deceptive practice charges.
These questions arise because of the following language found in the deceptive practices statute (Ill. Rev. Stat. 1975, ch. 38, par. 17-1):
Deceptive practice under subsections (a) through (d) is a Class A misdemeanor. In the case of a prosecution for separate transactions totaling more than $150 within a 90 day period, such separate transactions shall be alleged in a single charge and provided in a single prosecution." (Emphasis added.)
The relevant facts may be briefly stated. The defendant delivered seven checks over a period of 47 days (August 22, 1975, through October 7, 1975) to different merchants. The total amount of these checks was $165.16. Each check was returned by the bank either because of insufficient funds or a closed account (for overdrafts).
Six separate complaints were filed in November and December of 1975 charging defendant with deceptive practices. Each complaint alleged the issuance and delivery of a single check in violation of the statute. (Ill. Rev. Stat. 1975, ch. 38, par. 17-1(d).) Prior to the time for trial on these complaints, defendant was charged with deceptive practices on the seventh check. He immediately pleaded guilty to this charge and was subsequently sentenced for the offense.
Shortly after entering the guilty plea, defendant moved to dismiss the initial six complaints. The motions were premised both on an alleged failure to comply with the above-quoted proviso of section 17-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 17-1) and the entry and acceptance by the court of the guilty plea on the seventh check. The gist of the motions was that the proceeding on defendant's guilty plea was the "single prosecution" authorized by the statute, making any further prosecutions either a violation of the statutory prohibition against double jeopardy (Ill. Rev. Stat. 1975, ch. 38, par. 3-4) or the constitutional double jeopardy prohibitions (U.S. Const., amend. V; Ill. Const. 1970, art. I, § 10). After a hearing on these motions and the State's objection thereto, the court dismissed the complaints. This appeal followed.
The State urges that the proviso in question *fn1 is obviously an incomplete felony sentencing provision and not a procedural provision. It feels that such view is warranted since the full provision is preceded by the appellation, "Sentence," and since the $150 figure is used, which is the demarcation figure between several misdemeanor and felony offenses. In the State's estimation, the legislature simply forgot to designate this offense as a felony. The State therefore argues that since the prime consideration in construing a statutory enactment is to give effect to the intent of the legislature (People v. Bratcher, 63 Ill.2d 534, 349 N.E.2d 31) and since it is impossible to carry out its intention to create a felony sentencing provision because of the legislature's omissions, we should declare this proviso to be a legal nullity and reverse the trial court's orders.
1, 2 Since this argument and its underlying theory of the legislature's intent were not advanced by the State at the hearing on the motion to dismiss the complaints, this court could properly disregard this contention. (People v. McAdrian, 52 Ill.2d 250, 287 N.E.2d 688; People v. Smith, 42 Ill. App.3d 731, 356 N.E.2d 656.) If, however, the court misapprehended the nature of this proviso, it committed plain error affecting the substantial right of the State to bring defendant to trial on these charges. Noting the possible existence of plain error, this court, in the exercise of its discretion, will consider the State's argument. See Ill. Rev. Stat. 1975, ch. 110A, par. 615(a); People v. Smith.
The legislature's intent as to this proviso is not necessarily revealed by the heading of the whole provision being "sentence." This section does indeed declare that deceptive practice is a Class A misdemeanor, making the heading useful in indicating where one might find the applicable classification of the offense. While the fact that the $150 figure is mentioned does create some superficial support for the argument of the State, we think that in view of the clear language of the proviso the inference that this proviso was meant to be a felony sentencing provision is unwarranted.
It is fundamental that legislative intent should be sought primarily from the language used in the statute. (Certain Taxpayers v. Sheahen, 45 Ill.2d 75, 256 N.E.2d 758; Louis A. Weiss Memorial Hospital v. Kroncke, 12 Ill.2d 98, 145 N.E.2d 71.) The language of this proviso is clearly directed at the proper way to proceed in prosecuting deceptive practice charges when the enumerated qualifications are present. Although it is unclear why transactions exceeding $150 and those under that amount are impliedly directed to be handled by the prosecutor in a different manner, the language of this proviso does not imply that the legislature was attempting to define a felony.
3 The past history of this statute supports the view that this proviso was intended to be a procedural provision and not a felony sentencing provision. Prior to 1973, section 17-1 of the Criminal Code of 1961 (see Ill. Rev. Stat. 1971, ch. 38, par. 17-1) encompassed violations involving credit card offenses as well as the offenses now proscribed. The penalty provision of the statute as then written clearly provided that violation of two enumerated credit card offenses by a transaction in excess of $150 or several transactions over a 90-day period totaling in excess of this figure was punishable by one to 10 years imprisonment. A second or subsequent violation of any of the credit card offenses was similarly punishable. At that time the statute also included the proviso now in question. Bearing in mind that the legislature was explicit when defining what were felonies and that this proviso was in effect at the same time as these felony provisions, the conclusion is inescapable that this proviso is procedural in nature. When the Illinois Credit Card Act (Ill. Rev. Stat. 1975, ch. 121 1/2, par. 601 et seq.) became effective (October 1, 1973), all of the sections dealing with credit card offenses, including the ...