APPEAL from the Circuit Court of McLean County; the Hon. WAYNE
C. TOWNLEY, JR., Judge, presiding.
MR. PRESIDING JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:
Deceptive practices — jury trial — guilty — 60 days in jail.
We affirm the conviction.
On appeal, Ogunsola claims that: (1) the State failed to establish an intent to defraud; (2) the information was fatally defective in omitting an essential element of the offense; (3) he was denied a fair trial because the jury was not instructed on an element of the offense; (4) he was denied effective assistance of counsel; and (5) the trial court relied upon an unconstitutional statute in ordering a forfeiture of his cash bond.
We reject defendant's arguments on the first four points, but we agree with him on the fifth and reverse the trial court's forfeiture order.
But first a brief look at the facts.
On April 5, 1979, an information was filed charging the defendant with the offense of deceptive practices (Ill. Rev. Stat. 1979, ch. 38, par. 17-1(B)(d)), in an amount in excess of $150.
At trial, the State produced testimony establishing that on February 27, 1979, defendant entered Mitch's Import Auto Center and requested repairs for his 1972 Volkswagen. Defendant signed a work order which did not have any prices listed. Fred Mitchell, the owner of the auto center, stated that the brakes were repaired by freeing frozen adjusters and that the front and rear shocks were replaced. According to Mitchell, the front shocks had been difficult to remove.
Mitchell testified that he charged $30 per hour for labor. The total charge for the repairs to defendant's automobile was $286.80, representing $61.20 in labor for adjusting the brakes, $129 for labor in installation of the shock absorbers, $83 for the shocks, and $9 for miscellaneous parts. Mitchell stated that defendant did not object to the charges when the bill was presented and that he could not recall telling the defendant that he would not get his car back until he paid for the repairs.
On February 28, 1979, defendant gave Mitchell a check drawn on an account with the Prairie State Bank of Bloomington, Illinois, in the amount of $286.80. An employee of the bank stated that the balance in the checking account on about February 23, 1979, was $47.43. The check to the auto center was presented on March 2 and overdrew defendant's account by $250. The check was stamped "NSF" (insufficient funds), and returned. On the afternoon of March 7 defendant requested that the bank place a stop-payment order on the check.
At the close of the State's case, defense counsel moved for a directed verdict, arguing that the State had failed to prove defendant's intent to defraud. The trial court denied the motion.
Defendant produced only one witness in his defense. Kenneth Winn, an automobile mechanic, testified that he had worked on brakes and shock absorbers on several 1972 Volkswagens. He charged $16 per hour for labor and estimated that a fair price for installing shock absorbers would be $45 for the front and $8 for the rear in labor, and $62.20 in parts for the best shock absorbers available. A fair price for adjusting and freeing the brakes would be $32. Under his estimate, the total charges for defendant's repairs would have been $147.20.
The jury found the defendant guilty of deceptive practices under $150 and defendant was sentenced to serve 60 days in the county jail. In addition, the trial court entered an order declaring a forfeiture of defendant's bond deposit to reimburse the county for the services provided by the public defender.
Before we directly address each of defendant's contentions, a short digression is appropriate to discuss a threshold question.
The statute which the defendant was convicted of violating provides:
"A person commits a deceptive practice when, with intent to defraud:
(d) With intent to obtain control over property or to pay for property, labor or services of another he issues or delivers a check or other order upon a real or fictitious depository for the payment of money, knowing that it will not be paid by the depository. Failure to have sufficient funds or credit with the depository when the check or other order is issued or delivered is prima facie evidence that the offender knows that it will not be paid by the depository, and that he has the intent to defraud; * * *." Ill. Rev. Stat. 1979, ch. 38, par. 17-1(B)(d).
• 1 From a literal reading of the statute it appears as if the State is required to establish two separate intents — the intent to defraud and the intent to obtain control over property. The apparent reason for this confusing situation is that the "intent to defraud" language was inserted by an amendment following the original promulgation of the statute. (See Ill. Ann. Stat., ch. 38, par. 17-1, Historical Notes (Smith-Hurd 1977).) We recognize here, however, that a violation of the statute as written can only be established by proof of intent to defraud and proof ...