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People v. Ruff

OPINION FILED JUNE 23, 1983.

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

v.

WAYNE RUFF, DEFENDANT — (LENA JOSEPHINE RUFF, DEFENDANT-APPELLANT).



Appeal from the Circuit Court of Macon County; the Hon. Donald W. Morthland, Judge, presiding.

PRESIDING JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:

Following a jury trial, defendant was convicted of one count of unlawful possession of cannabis and two counts of unlawful possession of a controlled substance (cocaine and methaqualone), violations of section 4(e) of the Cannabis Control Act and section 402 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1981, ch. 56 1/2, pars. 704(e), 1402). She was sentenced to concurrent terms of two years' probation for each offense. The trial court also fined her $500. It is the trial court's imposition of a fine which defendant challenges on appeal. We affirm.

Because defendant does not contest the validity of her convictions, a brief recitation of the facts will suffice.

On May 3, 1982, the police executed a search warrant to an apartment rented by defendant and her husband, Wayne Ruff. Seized during the search were 17.22 pounds of cannabis, 3.1 grams of cocaine, 62 capsules of methaqualone, and a box containing $9,500 in United States currency.

As a result of the search, both defendant and her husband were charged with unlawful possession of cannabis with intent to deliver, unlawful possession of cannabis, and two counts of unlawful possession of a controlled substance. Defendant's husband, Wayne, was also charged with unlawful use of weapons, possession of a weapon without a firearm's owner identification card, reckless conduct, and armed violence. These additional charges stem from Wayne's having fired a pistol at police officers when they attempted to execute the warrant.

Defendant, at her trial, sought to prove that it was Wayne who was the active participant in the crimes. Both husband and wife testified that although defendant was aware that Wayne had been storing contraband in their home, she disapproved of the practice and had threatened to leave him over his involvement with drugs. The jury, however, convicted defendant on all counts except that charging her with unlawful possession of cannabis with intent to deliver. After defendant's trial, Wayne entered a negotiated plea of guilty to charges of unlawful possession of cannabis with intent to deliver, two counts of unlawful possession of a controlled substance, and reckless conduct. The remaining charges against him were dismissed.

At a joint sentencing hearing, evidence was presented which established that the street value of the drugs seized from the apartment was $7,718. Relying upon section 5-9-1.1 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005-9-1.1), the prosecutor recommended that a "total fine" of $7,718 be assessed against the Ruffs. Defendant was assessed the $500 fine in addition to her sentence of probation. Wayne Ruff was sentenced to the Department of Corrections and was fined $7,218. The court also ordered that the $9,500 seized with the contraband be forfeited to the county.

Before addressing defendant's arguments, we note that the fine assessed against defendant is substantially less than that mandated by section 5-9-1.1. That provisions provides:

"When a person has been adjudged guilty of a drug related offense involving possession or delivery of cannabis or possession or delivery of a controlled substance as defined in the Cannabis Control Act, as amended, in addition to any other penalty imposed, a fine shall be levied by the court at not less than the full street value of the cannabis or controlled substances seized.

`Street value' shall be determined by the court on the basis of testimony of law enforcement personnel and the defendant as to the amount seized and such testimony as may be required by the court as to the current street value of the cannabis or controlled substance seized." Ill. Rev. Stat. 1981, ch. 38, par. 1005-9-1.1.

The trial court in this case apportioned the fines against defendant and her husband so that the sum of the fines imposed equaled the street value of the drugs seized from both of them. Section 5-9-1.1, however, does not authorize an apportionment of fines between co-defendants. It provides in no uncertain terms that a person convicted of possessing or delivering cannabis or a controlled substance shall be assessed a fine equal to the street value of the contraband seized. Defendant was convicted of unlawful possession of cannabis and two counts of unlawful possession of a controlled substance. The street value of the drugs seized from her home was $7,718. Accordingly, application of section 5-9-1.1 required the imposition of a $7,718 fine.

• 1 The trial court when imposing sentence stated:

"I recognize that I could sentence her to pay the total fine and revoke part of it. I am not going to do that. I am going to sentence her to pay that much of a fine."

The court was apparently referring to its powers to revoke the fine pursuant to section 5-9-2 of the Unified Code of Corrections. (Ill. Rev. Stat. 1981, ch. ...


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