People v. Tarlton

• Decision Date: 16 March 1982
• Docket Number: No. 55031,55031
• Citation: 434 N.E.2d 1110,91 Ill.2d 1,61 Ill. Dec. 513
• Parties: , 61 Ill.Dec. 513 The PEOPLE of the State of Illinois, Appellant, v. Jerry L. TARLTON, Appellee.
• Court: Illinois Supreme Court

Page 1110

434 N.E.2d 1110

91 Ill.2d 1, 61 Ill.Dec. 513

The PEOPLE of the State of Illinois, Appellant, v. Jerry L. TARLTON, Appellee.

No. 55031.

Supreme Court of Illinois.

March 16, 1982.

Tyrone C. Fahner, Atty. Gen., Chicago, and John Baricevic, State's Atty., Belleville (Herbert Lee Caplan and Melbourne Noel, Jr., Asst. Attys. Gen., Chicago, and Robert L. Craig, Asst. State's Atty., Belleville, of counsel), for the People.

Randy E. Blue, Deputy State Appellate Defender, Mount Vernon, for appellee.

UNDERWOOD, Justice:

Following a bench trial in the circuit court of St. Clair County, defendant, Jerry L. Tarlton, was found guilty of violating section 8(i) of the Illinois Credit Card Act (Ill.Rev.Stat.1979, ch. 1211/2, par. 608(i)). Because the question before us involves only an interpretation of the statute, a complete transcript was not filed. Apparently, however, defendant had used the credit card of another in an unsuccessful attempt to buy a stereo valued above $150. The trial court granted defendant's motion in arrest of judgment, finding section 8(i) was void for failure to provide a penalty for fraudulent but unsuccessful use. The State appealed under our Rule 603. 73 Ill.2d R. 603.

Section 8 of the Act, in applicable part, provides:

"A person who, with intent to defraud either the issuer, or a person providing money, goods, property, services or anything else of value, or any other person, (i) uses, for the purpose of obtaining money, goods, property, services or anything else of value a credit card obtained or retained in violation of this Act or without the cardholder's consent, or a credit card which he knows is counterfeited, or forged, or expired, or revoked, or (ii) obtains money, goods, property, services or anything else of value by representing without the consent of the cardholder that he is the holder of a specified card or by representing that he is the holder of a card and such card has not in fact been issued, is guilty of a Class A misdemeanor if the value of all money, goods, property, services and other things of value obtained in violation of this Section does not exceed $150 in any 6-month period; and is guilty of a Class 4 felony if such value exceeds $150 in any 6-month period. * * *" (Ill.Rev.Stat.1979, ch. 1211/2, par. 608.)

The question before us is what, if any, penalty is provided for violation of subparagraph (i). After appeal was taken in this case, the appellate court in People v. Gibson (1981), 99 Ill.App.3d 616, 55 Ill.Dec. 24, 425 N.E.2d 1197, decided the identical question.

In Gibson the defendant was convicted of violating section 8(i) of the Act and forgery and was sentenced to concurrent prison terms in accordance with the penalties provided for Class 4 felonies. He appealed from his conviction for the unsuccessful use of a credit card, arguing that section 8(i) provided no penalty and was therefore a nullity. The appellate court, relying on the former provision of the Criminal Code of 1961 (Ill.Rev.Stat.1971, ch. 38, par. 17-1) which proscribed this conduct and clearly penalized an attempted fraudulent use as a felony, rejected defendant's argument and affirmed the conviction. The court stated:

"(T)he clear intendment of the legislature was that the penalty provision of section 8 should apply to situations where, as here, the accused was unsuccessful in his attempt to purchase goods or property by the unlawful use of a credit card. We are compelled to conclude that the failure to include additional language such as 'sought to be obtained' or 'attempted to be obtained' or words of similar import was a legislative oversight, inadvertent omission, or mistake, particularly given the fact that both types of offense proscribed in section 8 are included as part of a single sentence along with the penalty provision. We further believe that, although the legislature inadvertently failed to include this additional language, such words are contained in the statute by fair implication." 99 Ill.App.3d 616, 621, 55 Ill.Dec. 24, 425 N.E.2d 1197.

Contrasting with the rationale of the Gibson opinion is the argument offered by the State in its brief filed in this case before Gibson was decided. The State argues that "one who * * * obtains nothing has obtained less than $150." It further argues:

"The legislative scheme is clear. * * * (T)he penalty for repeated, but unsuccessful, unlawful use of a credit card subjects the accused to the penalty imposed for a Class A misdemeanor. * * * For the greater social harm of 'use for the purpose of obtaining', which use was successful, items exceeding $150 in value in a six-month period, the penalty for a Class 4 felony is imposed."

We disagree with the State's view that the "legislative scheme is clear," at least as it concerns the penalty intended for an attempt to obtain goods valued above $150 in violation of the Act. However, this court must attempt to give effect to the expressed intent of the legislature and avoid...