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03/07/97 PEOPLE STATE ILLINOIS v. DARRYL DAVIS

March 7, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
DARRYL DAVIS, APPELLEE.



Appeal from the Circuit Court of Cook County. CASE NUMBER: TR95CR34051. Hon. Dennis J. Porter, TRIAL JUDGE.

The Honorable Justice Nickels delivered the opinion of the court. Justice Miller, dissents. Justice Bilandic, dissents.

The opinion of the court was delivered by: Nickels

The Honorable Justice NICKELS delivered the opinion of the court:

We here decide the constitutionality of the statutory penalty for felons who violate the Firearm Owners Identification Card Act (430 ILCS 65/0.01 et seq. (West 1994)). The circuit court of Cook County found that the statutory penalty for felons in possession of a firearm without proper registration (730 ILCS 5/5-5-3(c)(2)(N) (West Supp. 1995)), when compared to the penalty for the offense of unlawful use of a weapon by a felon (720 ILCS 5/24-1.1 (West 1994)), is disproportionate under section 11 of article I of the 1970 Illinois Constitution. The circuit court also found that the sentencing disparity violated due process under both the Illinois and United States Constitutions. Ill. Const. 1970, art. I, § 2; U.S. Const., amend. XIV. The State appealed directly to this court. 134 Ill. 2d R. 603. *fn1 For reasons that follow, we agree that the statutory penalty for felons convicted of failing to register a firearm pursuant to the Firearm Owners Identification Card Act violates the Illinois Constitution. We therefore affirm the trial court.

BACKGROUND

Defendant, Darryl Davis, was charged by information with two counts of unlawful use of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 1994) (one count each for a firearm and ammunition)), one count of unlawful use of a weapon (720 ILCS 5/24-1(a)(4) (West 1994)), and one count of failing to have a firearm owner's card in violation of the Firearm Owners Identification Card Act (430 ILCS 65/2(a)(1) (West 1994)).

Prior to trial, defendant filed a motion to dismiss the Firearm Owners Identification Card Act charge. In his motion, defendant noted that possessing a firearm without a firearm owner's card is a nonprobationable Class 3 felony that is subject to a minimum two-year prison sentence. See 730 ILCS 5/5-5-3(c)(2)(N) (West Supp. 1995). In contrast, the offense of unlawful use of a weapon by a felon is a probationable Class 3 felony. See 730 ILCS 5/5-8-1(a)(6) (West 1994). Defendant's motion alleged that it was irrational to make the penalty for the registration offense nonprobationable while the penalty for the offense of unlawful use of a weapon by a felon is probationable. Thus, defendant contended that the Firearm Owners Identification Card Act sentencing provision for felons violated due process under both the Illinois and United States Constitutions. See Ill. Const. 1970, art. I, § 2; U.S. Const., amend. XIV.

Defendant also argued that giving the registration offense a more serious penalty violates section 11 of article I of the 1970 Illinois Constitution. This provision, referred to as the proportionate penalties clause or the limitation-of-penalties provision, provides in part:

"All penalties shall be determined *** according to the seriousness of the offense ***." Ill. Const. 1970, art. I, § 11.

Defendant's motion alleged that the Firearm Owners Identification Card Act sentencing provision violates this constitutional guarantee by providing a more severe penalty for that offense than for the more serious offense of unlawful use of a weapon by a felon.

Last, defendant's motion alleged that the Firearm Owners Identification Card Act charge constituted a double enhancement. Defendant essentially suggested that his status as a felon should not be used twice to enhance the punishment for his criminal conduct. In this regard, defendant noted that because he is a felon he could not obtain a firearm owner's card. Defendant therefore reasoned that he cannot commit the lesser punished unlawful use of a weapon by a felon offense without committing the more harshly punished registration offense. Thus, defendant contended that the Firearm Owners Identification Card Act charge constituted a double enhancement based on his status as a felon.

After a hearing, the circuit court granted defendant's motion to dismiss the Firearm Owners Identification Card Act charge. The circuit court held that the penalty provision for felons convicted of violating the Firearm Owners Identification Card Act offended both due process and the proportionate penalties clause. The court reasoned that "there is no rational basis for *** making it non-probationable not to have the card and probationable to have the gun that requires you to have the card." The circuit court rejected defendant's contention that the Firearm Owners Identification Card Act penalty provision constituted a double enhancement. The State then appealed the dismissal of the Firearm Owners Identification Card Act charge directly to this court.

During the briefing of this case, this court decided People v. Lewis, 175 Ill. 2d 412, 222 Ill. Dec. 296, 677 N.E.2d 830 (1996), which addressed the scope of the proportionate penalties clause. The State repeats here many arguments it made in Lewis. Therefore, we briefly address those arguments prior to turning attention to the merits of the present claim. Furthermore, as we find the proportionate penalties issue dispositive, the following analysis does not address the due process or double enhancement claims.

ANALYSIS

Pretrial ...


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