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People v. Simon

OPINION FILED DECEMBER 23, 1980.

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

v.

RICHARD SIMON, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. JEROME T. BURKE, Judge, presiding.

MR. PRESIDING JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

At the conclusion of a hearing on defendant's motion to quash the indictment charging him with delivery of less than 30 grams of cocaine (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 1401(b)), the trial court dismissed the indictment. The sole issue on appeal is whether the trial court's dismissal of the indictment is manifestly erroneous. We hold that it is and we reverse and remand.

The indictment sets forth the offense as follows:

"Louis Angelopoulos *fn1 and Richard Simon committed the offense of delivery of [a] controlled substance in that they unlawfully and knowingly delivered to Al Rodriguez otherwise than as authorized in the Illinois Controlled Substances Act of * * * Illinois * * *, less than thirty grams of a substance containing a controlled substance to wit: cocaine."

At the hearing on the motion to quash the indictment, defendant raised two arguments; (1) the legislature amended Schedule II of the Controlled Substance Act (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 1206(b)(4)) and struck the word "cocaine" from the section, therefore, "cocaine" is no longer a controlled substance and thus the indictment did not allege an offense; and (2) the word "cocaine" is a generic term for a broad spectrum of properties and only some properties are controlled and therefore the indictment is not sufficiently specific so as to be legally proper in form. The trial court based its dismissal of the indictment on defendant's first argument. Thereupon, the State instituted this appeal.

OPINION

The State contends that the trial court's dismissal of the indictment is manifestly erroneous. We agree.

• 1 When the sufficiency of an indictment is attacked in a pretrial motion (Ill. Rev. Stat. 1977, ch. 38, par. 114-1), the standard of review is to determine whether the indictment complies with the provisions of section 111-3 of the Code of Criminal Procedure (Ill. Rev. Stat. 1977, ch. 38, par. 111-3), which lists the requirements for charging an offense. (People v. Tuczynski (1978), 62 Ill. App.3d 644, 378 N.E.2d 1200.) This section requires that the charge: (1) be in writing; (2) state the name of the offense; (3) cite the statutory provisions alleged to be violated; and (4) set forth the elements of the offense. People v. Tuczynski.

Whether the requirements of the statute have been met must be judged in light of the purpose of the charging instrument (People v. Bissaillon (1977), 55 Ill. App.3d 893, 371 N.E.2d 362) and with reference to the plain ordinary meaning of the words of the charging instrument as read and interpreted by a reasonable person (People v. Banks (1979), 75 Ill.2d 383, 388 N.E.2d 1244). The function of an indictment, like any other charging instrument, is first to advise the accused of the nature of the accusation so he is able to fully prepare his defense, and second to serve as a bar to second prosecution for the same offense. People v. Tuczynski (1978), 62 Ill. App.3d 644, 378 N.E.2d 1200.

If the substance of the charge meets these standards, the indictment should not be dismissed. (People v. Bissaillon (1977), 55 Ill. App.3d 893, 371 N.E.2d 362; People v. DePratto (1976), 36 Ill. App.3d 338, 343 N.E.2d 628.) Thus, the sufficiency of an indictment is determined by the substance of the charge asserted and not by the linguistic technicalities of the language utilized in the indictment. (People v. Powell (1978), 72 Ill.2d 50, 377 N.E.2d 803, cert. denied (1979), 440 U.S. 907, 59 L.Ed.2d 455, 99 S.Ct. 1214.) In addition, an indictment is to be read as a whole, and where the statute is cited in an indictment, as in the instant case, the statute and the charge are to be read together. People v. Jones (1975), 30 Ill. App.3d 1065, 333 N.E.2d 245.

a.

With these principles in mind, we now examine the indictment in the instant case and the trial court's asserted basis for dismissing the indictment.

The indictment charges defendant with delivery of less than 30 grams of "cocaine," a controlled substance, in violation of section 401(b) (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 1401(b)). Section 401 makes delivery of a controlled substance unlawful. Subsections (a) and (b) set forth the felony classifications and penalties which are dependent upon the amount of the controlled substance a person is charged with delivering or manufacturing. Subsection (a), for example, makes delivery of a substance containing more than 30 grams of "cocaine" a Class I felony (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 1401(a)(2)). Subsection (b), the section defendant is charged with violating, classifies as a Class II felony any other amount of a controlled substance enumerated in Schedules I or II (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 1401(b)) which is a narcotic drug.

The trial court based its dismissal of the indictment on the use of the word "cocaine" in the indictment. The trial court concluded that delivery of "cocaine" was no longer an offense because in 1977, the legislature amended Schedule II to delete the specific word "cocaine." (Ill. Rev. Stat. 1977, ...


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