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People v. Dicostanzo

March 31, 1999

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
SAMMY DICOSTANZO, DEFENDANT-APPELLEE



The opinion of the court was delivered by: Presiding Justice Gordon

Appeal from the Circuit Court of Cook County

Honorable James D. Egan, Judge Presiding.

The defendant, Sammy Dicostanzo, was arrested for the offense of misdemeanor retail theft (720 ILCS 5/16A-3, 16A-10(1) (West 1996)). He was charged with the enhanced offense of felony retail theft under section 16A-10(2) of the Criminal Code of 1961 (720 ILCS 5/16A-10(2) (West 1996)) based upon his prior conviction for attempt burglary. The defendant moved to dismiss the charge of felony retail theft arguing that attempt burglary was not enumerated in the list of offenses under section 16A-10(2) for which enhancement could occur. The trial court granted defendant's motion, and the State appeals.

The sole issue on appeal is whether the inchoate forms of the offenses enumerated in section 16A-10(2) of the retail theft provision of the Criminal Code of 1961 (the Criminal Code) (720 ILCS 5/16A-10(2) (West 1996)) implicitly support enhancement from misdemeanor retail theft to felony retail theft.

BACKGROUND FACTS

The defendant was arrested on December 12, 1997 after attempting to pass the last point of sale at a K Mart store with a Panasonic telephone, valued at less than $150, concealed in his jacket. At the time of his arrest, the defendant had been previously convicted of attempt burglary. Based upon the latter conviction, the State enhanced the charge of retail theft from a Class A misdemeanor to a Class 4 felony. The statute allowing that enhancement, section 16A-10(2) of the Criminal Code (hereinafter referred to as the "enhancement provision"), provides in pertinent part as follows:

"A person who has been convicted of retail theft of property, the full retail value of which does not exceed $150, and who has been previously convicted of any type of theft, robbery, armed robbery, burglary, residential burglary, possession of burglary tools or home invasion is guilty of a Class 4 felony."

In his motion to dismiss the felony retail theft charge, the defendant argued that attempt burglary was not one of the enumerated offenses which served to enhance a retail theft misdemeanor to felony status. The trial court granted defendant's motion, finding that since the statute did not specifically include attempt offenses, "[t]he benefit should go to the Defendant."

DISCUSSION

The instant case involves a question of law, namely, the construction of a statute. As such, our review is de novo, and we may independently review the statute. See City of Chicago v. Illinois Commerce Comm'n, 286 Ill. App. 3d 557, 676 N.E.2d 275 (1997); People v. Bryant, 101 Ill. App. 2d 314, 243 N.E.2d 354 (1968).

In accordance with rules of construction, this court must first give effect to the plain language of the statute. As provided in People v. Woodard, 175 Ill. 2d 435, 677 N.E.2d 935 (1997):

"The primary rule of statutory construction is to ascertain and give effect to the intention of the legislature, and that inquiry appropriately begins with the language of the statute. [Citation.] There is no rule of construction which allows the court to declare that the legislature did not mean what the plain language of the statute imports. Where an enactment is clear and unambiguous, the court is not free to depart from the plain language and meaning of the statute by reading into it exceptions, limitations, or conditions that the legislature did not express [citations], nor is it necessary for the court to search for any subtle or not readily apparent intention of the legislature [citations]. Where the language of a statute is clear and unambiguous, it will be given effect without resort to other aids for construction. [Citation.] Criminal or penal statutes are to be strictly construed in favor of an accused and nothing should be taken by intendment or implication beyond the obvious or literal meaning of the statute. [Citation.]" Woodard, 175 Ill. 2d at 443-44, 677 N.E.2d at 939.

Accord People v. Tucker, 167 Ill. 2d 431, 657 N.E.2d 1009 (1995). When the language of the statute is unclear, courts may consider legislative history, including legislative debates, to determine legislative intent. People v. Lowe, 153 Ill. 2d 195, 606 N.E.2d 1167 (1992); Advincula v. United Blood Services, 176 Ill. 2d 1, 678 N.E.2d 1009 (1996) (courts may look beyond the statutory language only where that language is ambiguous or inconclusive, or a literal interpretation would lead to an absurd result). The courts will look to the objective the legislature sought to accomplish and the evils it desired to remedy. Tucker, 167 Ill. 2d 431, 657 N.E.2d 1009; People v. Scharlau, 141 Ill. 2d 180, 565 N.E.2d 1319 (1990).

The statute in the instant case provides that the offense of retail theft of property can be enhanced from a Class A misdemeanor to a Class 4 felony when the person "has been previously convicted of any type of theft, robbery, armed robbery, burglary, residential burglary, possession of burglary tools or home invasion." 720 ILCS 5/16A-10(2) (West 1996). Our construction of this statute begins first with the question of whether the term "any type" refers only to the offense of theft, as the defendant contends, or refers to each of the offenses listed thereafter, including burglary, as the State contends. We would be inclined to agree with the defendant. Our inclination is not based upon the legislature's failure to precede each enumerated offense with the phrase "any type," as we believe that in many circumstances a modifier at the beginning of a series can apply to each item in the series so as to avoid ...


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