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People v. Brenizer

OPINION FILED FEBRUARY 6, 1986.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,

v.

VICTOR I. BRENIZER, APPELLEE.



Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Adams County, the Hon. Dennis K. Cashman, Judge, presiding.

JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:

The defendant, Victor I. Brenizer, was charged by information, in the circuit court of Adams County, with four counts of felony theft in violation of section 16-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, pars. 16-1(a)(1), 16-1(b)(1)). Upon motion of the defendant, the trial court dismissed both the initial information and the amended information. The appellate court affirmed in a Rule 23 order. (87 Ill.2d R. 23; 127 Ill. App.3d 1172.) We allowed the State's petition for leave to appeal (94 Ill.2d Rules 315(a), 604(a)) and now reverse.

The sole issue on appeal is whether a series of acts committed by a defendant, each of which might otherwise constitute a misdemeanor theft, may be charged as a single felony when it is alleged that the acts were in furtherance of a single intention and design to obtain the property of a single owner.

The defendant was employed as a restaurant manager at a Bergner's department store. In that capacity he would, on a regular basis, charge food and related items to an account the restaurant had at Randall's Discount Foods. The alleged crime stemmed from numerous occasions over a period of approximately 2 1/2 years during which the defendant charged food and general merchandise to Bergner's account at Randall's and then directed those items to his personal use.

The State's initial information, in four counts, alleged that on or about March 19, 1981, and continuing to the date of the information (September 27, 1983), the defendant committed the offense of theft. Count I alleged that the defendant took approximately $800 in United States currency. Count II alleged that he took food and general merchandise having a total value in excess of $300. Count III alleged that the defendant took property, in the approximate amount of $800, by making unauthorized credit charges on behalf of Bergner's at Randall's for food and general merchandise which he directed to his personal use. Count IV alleged that he took food and general merchandise, having a total value in excess of $300, by making unauthorized charges on behalf of Bergner's at Randall's, which caused Bergner's to issue checks to pay for those charges.

Theft of property, other than a firearm, not from the person and not exceeding $300 in value is a Class A misdemeanor, while a second or subsequent offense after a conviction of any type of theft, including retail theft, other than theft of a firearm, is a Class 4 felony. (Ill. Rev. Stat. 1981, ch. 38, par. 16-1(e)(1).) Theft of property exceeding $300 is a Class 3 felony. Ill. Rev. Stat. 1981, ch. 38, par. 16-1(e)(3).

The defendant filed a motion for severance which alleged that the offenses charged in the State's initial information were separate and distinct "as each one involve[d] a different alleged theft of differing amounts o[n] different dates which happen[ed] to involve the same [d]efendant and the same alleged victim." He further alleged that the State had impermissibly joined the offenses in an attempt to elevate misdemeanor offenses to felony offenses. The defendant also filed a motion for a bill of particulars requesting that the State provide him with the date, place, and time of the alleged occurrences. The State's answer listed 54 dates between March 19, 1981, and September 27, 1983, on which the alleged occurrences took place.

The trial court heard arguments on the defendant's motion for severance. Defense counsel initially argued that the State should not be allowed to arbitrarily lump the various transactions into "two transactions, one $800 and one $300." He later argued that the defendant should be tried separately on each of the transactions listed in the answer to the bill of particulars. The assistant State's Attorney explained that the four counts in the information were simply alternate methods of charging the same underlying factual circumstances; the State had not arbitrarily lumped the 54 acts into two felony offenses. She also maintained that the State could properly charge the defendant with one offense pursuant to section 111-4(c) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 111-4(c)).

The trial court held that if the State wanted to charge the defendant with a single offense it would have to allege that the acts were in furtherance of a single intention and design. Since the information did not allege that the acts were in furtherance of a single intention and design, the court ruled that the information failed to state an offense. The court treated the defendant's motion for severance as a motion to dismiss and dismissed the information. The State was given leave to file an amended information.

The State filed an amended information which added to each of the four counts the allegation that the offense was committed in furtherance of a single design. The defendant filed a motion for severance. He also filed a motion to dismiss which alleged that the amended information failed to state an offense. Defense counsel maintained that although section 111-4(c) may provide for the joinder of a series of acts, it does not permit the elevation of a number of misdemeanors into one or more felonies. The assistant State's Attorney argued that the defendant had been properly charged with the offense of theft in accordance with section 16-1 and that whether the defendant had in fact committed the 54 acts with a single intention and design would be a matter of proof at trial. Section 111-4(c) provides:

"(c) Two or more acts or transactions in violation of any provision or provisions of Sections 16-1 [theft], 16-2 [theft of lost or mislaid property] and 16-3 [theft of labor or services or use of property] of the `Criminal Code of 1961' * * * may be charged as a single offense in a single count of the same indictment, information or complaint, if such acts or transactions by one or more defendants are in furtherance of a single intention and design and if the property, labor or services obtained are of the same person or are of several persons having a common interest in such property, labor or services. In such a charge, the period between the dates of the first and the final such acts or transactions may be alleged as the date of the offense * * *." Ill. Rev. Stat. 1981, ch. 38, par. 111-4(c).

The trial judge acknowledged that "[f]rom a purely technical standpoint" the alleged events in this case "would fit within th[e] language" of section 111-4(c). However, since he had not been presented with any authority allowing the State to take a number of misdemeanors and charge a defendant with a single offense and then elevate those misdemeanors into one or more felonies, he concluded that the State had gone further than section 111-4(c) would permit. The trial court granted the defendant's motion to dismiss. The State was not given leave to file a second amended information.

The appellate court acknowledged, as did the trial court, that the requirements of section 111-4(c) had been met. It further acknowledged that "the attempt to join the offenses was probably permissible." However, the appellate court concluded that the trial court had not abused its discretion in dismissing the amended information and that the trial court's decision was not palpably erroneous because it had not been presented with any authority authorizing the joinder requested by the State.

The rule followed by the majority of jurisdictions is that when property is stolen from the same owner and from the same place by a series of acts, if each taking is pursuant to a separate, independent impulse, it is a separate offense. However, if the successive takings are pursuant to a single, continuing criminal impulse, they constitute a single theft. (50 Am.Jur.2d Larceny sec. 4 (1970); 52A C.J.S. Larceny sec. 53 (1968).) Whether a series of takings constitutes a single offense or several offenses ...


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