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October 20, 1995


Appeal from the Circuit Court of Cook County. Honorable William Hibbler, Judge Presiding.

Released for Publication November 28, 1995.

The Honorable Justice Rakowiski delivered the opinion of the court. McNAMARA, P.j., and Egan, J., concur.

The opinion of the court was delivered by: Rakowski

JUSTICE RAKOWSKI delivered the opinion of the court:

On January 24, 1994, defendant was arrested and found to be in possession of both cocaine and heroin which were located inside the same cigarette package. After a bench trial, defendant was convicted of two counts of possession with intent to deliver, one for each substance. He was sentenced to concurrent terms of 4 1/2 years for each offense. The sole issue on appeal is whether the trial court erred in entering multiple convictions where defendant simultaneously possessed more than one controlled substance.

In 1978, our supreme court held that the simultaneous possession of more than one type of a controlled substance constitutes a single offense for which only one sentence should be imposed. ( People v. Manning (1978), 71 Ill. 2d 132, 374 N.E.2d 200, 15 Ill. Dec. 765.) Subsequent appellate court opinions have followed the rule set forth in Manning. See People v. Delgado (1993), 256 Ill. App. 3d 119, 628 N.E.2d 727, 195 Ill. Dec. 263; People v. Valdez (1992), 230 Ill. App. 3d 975, 595 N.E.2d 1245, 172 Ill. Dec. 575; People v. Banks (1992), 227 Ill. App. 3d 950, 592 N.E.2d 412, 169 Ill. Dec. 925; People v. Love (1991), 222 Ill. App. 3d 428, 584 N.E.2d 189, 165 Ill. Dec. 10; People v. Vazquez (1990), 194 Ill. App. 3d 516, 551 N.E.2d 656, 141 Ill. Dec. 469; People v. Branch (1986), 143 Ill. App. 3d 679, 493 N.E.2d 417, 97 Ill. Dec. 754; People v. Whitfield (1986), 140 Ill. App. 3d 433, 488 N.E.2d 1087, 94 Ill. Dec. 840; People v. Knight (1985), 133 Ill. App. 3d 248, 478 N.E.2d 1082, 88 Ill. Dec. 474; People v. Hunter (1984), 124 Ill. App. 3d 516, 464 N.E.2d 659, 79 Ill. Dec. 755; People v. Tonaldi (1981), 98 Ill. App. 3d 528, 424 N.E.2d 1200, 54 Ill. Dec. 297; People v. Evans (1979), 80 Ill. App. 3d 87, 398 N.E.2d 1219, 35 Ill. Dec. 269; People v. Dunlap (1978), 59 Ill. App. 3d 615, 375 N.E.2d 989, 16 Ill. Dec. 882.

However, effective August 20, 1995, Public Act 89-404 *fn1 now allows multiple convictions where a defendant simultaneously possesses more than one type of controlled substance. The amendment overrules Manning and its progeny. The question before us, then, is which rule of law applies to defendant: Manning or the amendment? For the following reasons, we hold that the amendment does not apply to defendant's conviction and we therefore reverse and remand.

In general, and in Illinois, amendatory acts are construed to apply prospectively and not retroactively. ( People v. Stothoff (1990), 208 Ill. App. 3d 500, 504, 567 N.E.2d 420, 153 Ill. Dec. 462.) Amendments may be applied retroactively but only if the legislative intent is clear and the proponent rebuts the presumption of prospectivity by showing: (1) the express language of the amendment makes it retroactive; (2) retroactivity is necessarily implied; (3) the amendment merely affects the remedy; (4) the amendment affects procedural matters rather than substantive rights ( Stothoff, 208 Ill. App. 3d at 504; see also Chemrex, Inc. v. Pollution Control Board (1993), 257 Ill. App. 3d 274, 278-79, 628 N.E.2d 963, 195 Ill. Dec. 499; Cooper v. Chicago Transit Authority (1991), 224 Ill. App. 3d 321, 324, 586 N.E.2d 575, 166 Ill. Dec. 617); or (5) the amendment clarifies existing law. Royal Imperial Group, Inc. v. Joseph Blumberg & Associates, Inc. (1992), 240 Ill. App. 3d 360, 364-65, 608 N.E.2d 178, 181 Ill. Dec. 105.

Although the State concedes factors 1 through 4, it contends that number 5 is applicable in that Public Act 89-404 is a clarification of existing law. According to the State, Manning was not a correct interpretation of legislative intent, and the legislature has now clarified the issue. We disagree.

Clarification assumes an ambiguity or conflicting case law. Here, however, since Manning, the law has been clear and without exception: simultaneous possession of more than one controlled substance can result in only one conviction. *fn2 Rather than clarifying existing law, Public Act 89-404 changed existing law.

Moreover, the argument the State makes, that the legislature always intended to allow multiple convictions based on simultaneous possession, was rejected in People v. Banks (1992), 227 Ill. App. 3d 950, 592 N.E.2d 412, 169 Ill. Dec. 925. There, the court stated, "the State's argument, which seeks to have separate offenses under the Act defined by the substance possessed, is more properly directed to the General Assembly, not to the appellate court." ( Banks, 227 Ill. App. 3d at 954.) This is precisely what occurred. The matter was directed to the General Assembly, it responded by enacting Public Act 89-404, and therefore, changed the existing state of the law.

Based on the above, we find the amendment applies prospectively only and does not apply to defendant.

In addition, if we interpret the amendment retroactively, such an interpretation would violate the separation of powers doctrine.

"The principle of separation of powers is embodied in article II, section 1, of the Illinois Constitution of 1970, which provides: 'The legislative, executive and judicial branches are separate. No branch shall exercise powers properly belonging to another.' [Citation.] This court has observed that the General Assembly is not a court of last resort and it may not attempt to retroactively apply new statutory language to annul a prior decision of this court. ( Roth v. Yackley (1979), 77 Ill. 2d 423[, 396 N.E.2d 520, 33 Ill. Dec. 131].) While the General Assembly may enact retroactive legislation which changes the effect of a prior decision of a reviewing court with respect to others whose circumstances are similar but whose rights have not been finally decided, it is axiomatic that the General Assembly may not validly enact a statute, the ...

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