People v. Tellez

No. 2--97--0608
________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
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THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of De Kalb County.
)
Plaintiff-Appellant, ) No. 97--CF--127
)
v. )
)
BONNIE TELLEZ, ) Honorable
) Douglas R. Engel,
Defendant-Appellee. ) Judge, Presiding.
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JUSTICE BOWMAN delivered the opinion of the court:
Defendant, Bonnie Tellez, was charged by information with
criminal neglect of a disabled person (720 ILCS 5/12--21(a)(2) (West
1996)). In the information, the State referred to the offense as
a Class 3 felony. Defendant moved to dismiss the information,
alleging that it did not state an offense because criminal neglect
of a disabled person is not a Class 3 felony. The court denied the
motion but struck the language a Class 3 FELONY from the
information. The court ruled that criminal neglect of a disabled
person is an unclassified offense and therefore is a business or
petty offense. The State filed a certificate of impairment and
appealed pursuant to Supreme Court Rule 604(a)(1) (145 Ill. 2d R.
604(a)(1)). We reverse and remand.
Before proceeding to the merits of the State s argument, we
address defendant s contention that we lack jurisdiction to hear
this appeal. The State argues that we have jurisdiction pursuant
to Rule 604(a)(1), which allows the State to appeal an order having
the substantive effect of dismissing a charge. Defendant argues
that the court s order reducing the charge from a felony to a petty
offense was not a dismissal because defendant was still charged with
the same offense--criminal neglect of a disabled person. The State
argues that the substantive effect of the court s order was to
dismiss a felony charge and to replace it with a petty offense
charge.
The parties incorrectly treat this as an issue of first
impression. In People v. Henry, 20 Ill. App. 3d 73 (1974), the
defendant was charged with theft. The indictment included an
allegation that the defendant had a previous theft conviction. The
court struck the allegation of a previous conviction, thus reducing
the charge from a felony to a misdemeanor. The appellate court held
that the substantive effect of the court s order was a dismissal of
the original charge, and therefore the State could properly appeal.
Henry, 20 Ill. App. 3d at 74-75; cf. People v. Rotramel, 5 Ill. App.
3d 196, 197-98 (1972) (indictments charged defendants with driving
under the influence of alcohol; trial court amended complaint to
charge reckless driving and accepted guilty pleas to the reduced
charges; State could properly appeal because substantive effect of
court s action was a dismissal of the greater charges). We hold
that the State may appeal because the substantive effect of the
court s action was to dismiss a Class 3 felony charge and to replace
it with a petty offense charge.
On the merits, the State argues that the court incorrectly
ruled that criminal neglect of a disabled person is a petty offense
rather than a Class 3 felony. The statute defining the offense
provides, in part, as follows:
Criminal Neglect of an Elderly or Disabled person.
(a) A person commits the offense of criminal neglect of
an elderly or disabled person when he is a caregiver and he
knowingly:
(1) performs acts which cause the elderly or disabled
person's life to be endangered, health to be injured, or
pre-existing physical or mental condition to deteriorate; or
(2) fails to perform acts which he knows or reasonably
should know are necessary to maintain or preserve the life or
health of the elderly or disabled person and such failure
causes the elderly or disabled person's life to be endangered,
health to be injured or pre-existing physical or mental
condition to deteriorate; or
(3) abandons the elderly or disabled person.
Criminal neglect of an elderly person is a Class 3
felony. (Emphasis added.) 720 ILCS 5/12--21 (West 1996).
The problem with the statute is that the penalty section refers to
criminal neglect of an elderly person and does not mention the
penalty for neglect of a disabled person. However, in virtually
every other part of the statute, the terms elderly and disabled
are used together.
Defendant argues, and the trial court agreed, that criminal
neglect of a disabled person is an unclassified offense and is
therefore a petty or business offense. See 730 ILCS 5/5--5--2(c)
(West 1996). The State argues that it was an obvious legislative
oversight that the words or disabled were left out of the penalty
section of the statute and that criminal neglect of a disabled
person is a Class 3 felony. We agree with the State.
Defendant argues that it is improper for us to construe the
statute because there is no ambiguity. Defendant asserts that
because the plain language of the statute provides that criminal
neglect of the elderly is a Class 3 felony but does not classify
criminal neglect of the disabled, the statute is not ambiguous and
we may not construe it. We disagree with defendant s argument and
hold that the statute is ambiguous. An ambiguity exists when a
statute is capable of being understood in two or more different
senses by reasonably well-informed persons. People v. Jameson, 162 Ill. 2d 282, 288 (1994); People v. Magnus, 262 Ill. App. 3d 362, 366
(1994). A reasonably informed person reviewing this statute to
determine the classification of criminal neglect of a disabled
person could reach either the State s conclusion or defendant s.
The literal terminology of the classification section refers to
neglect of the elderly but not the disabled. Nevertheless, that
section becomes ambiguous when the statute is read as a whole
because the two crimes are treated in exactly the same manner
throughout the rest of the statute. Accordingly, the statute is
ambiguous and we must construe it to determine the legislature s
intent.
The primary rule of statutory construction is to ascertain and
give effect to the intention of the legislature. People v. Woodard,
175 Ill. 2d 435, 443 (1997). The court may look not only to the
language of the statute but also to the reason and necessity for the
law, the evils the legislature sought to remedy, and the objects and
purposes the legislature sought to accomplish. People v. Drakeford,
139 Ill. 2d 206, 214 (1990). In construing a statute, every part,
including its title, must be considered together. People v. Warren,
173 Ill. 2d 348, 357 (1996). Penal statutes are to be strictly
construed in favor of the accused. People v. Chandler, 129 Ill. 2d 233, 254 (1989). However, they must not be construed so rigidly as
to defeat the intent of the legislature. People v. Parker, 123 Ill. 2d 204, 213 (1988). The judiciary has the authority to read into a
statute language omitted through legislative oversight. Parker, 123 Ill. 2d at 211.
We believe that the State s construction of the statute is
correct and that it was a legislative oversight that the words or
disabled were omitted from the classification section of the
statute. As stated above, we must construe the statute as a whole
in determining the legislature s intent. The title of the statute
is Criminal Neglect of an Elderly or Disabled person. Sections
12--21(a)(1), 12--21(a)(2), and 12--21(a)(3) (720 ILCS 5/12--
21(a)(1), (a)(2), (a)(3) (West 1996)) define the offense. Each of
these sections uses the words elderly or disabled. The rest of
the statute provides definitions and rules of construction. Each
of these sections, with the necessary exception of the sections
defining the terms elderly person and disabled person, uses the
words elderly or disabled. Other than the section that defines
elderly person, the only place the term elderly is used without
or disabled is in the provision that says Criminal neglect of an
elderly person is a Class 3 felony.
We believe that the most logical conclusion one can reach in
construing this statute is that criminal neglect of a disabled
person is likewise a Class 3 felony. The legislature created an
offense called criminal neglect of an elderly or disabled person
and defined the offense exactly the same whether it was committed
against either the elderly or the disabled. The obvious purpose of
the statute is the protection of the elderly and the disabled. It
would not make sense for the legislature to make the crime a Class
3 felony (punishable by two to five years imprisonment in the
Department of Corrections) when committed against the elderly but
a petty offense (punishable by a fine only) when committed against
the disabled. Nothing in the language of the statute suggests that
the legislature viewed the crime as more serious when committed
against the elderly.
The parties relied on legislative history in making their
arguments. We have reviewed the provided excerpts of the floor
debates and found them not particularly helpful. However, what is
notably absent from the floor debates is any indication that the
legislature viewed the crime as more serious when committed against
the elderly or any discussion concerning making the offense a Class
3 felony when committed against the elderly but only a petty offense
when committed against the disabled. We believe the trial court s
construction of the statute thwarted the intent of the legislature
in creating this offense.
We conclude that the legislature s intention was to make
criminal neglect of a disabled person a Class 3 felony and that the
omission of the words or disabled from the penalty section was a
legislative oversight. Therefore, the penalty section of section
12--21 of the Criminal Code of 1961 (720 ILCS 5/12--21 (West 1996))
should be read as Criminal neglect of an elderly or disabled person
is a Class 3 felony.
Accordingly, we reverse the order of the circuit court of De
Kalb County striking the words a Class 3 FELONY from the
information and remand the cause for further proceedings consistent
with this disposition.
Reversed and remanded.
INGLIS and DOYLE, JJ., concur.