dissenting:
The majority’s solution to the problem presented is not persuasive and is a usurpation of legislative prerogative. It is well established that it is the province of the legislature under the State’s police power to define and classify offenses and to prescribe penalties therefor. (People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344.) The entire scheme of sections 401, 402, 403, and 404 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1981, ch. 561/2, pars. 1401, 1402, 1403, and 1404) is that of defining the offenses in terms of felony or misdemeanor and then providing for a fine in addition thereto. By striking the fine from section 404 the majority punches a large hole in this otherwise seamless web. The ubiquity of the fines throughout the penalty sections, and the size thereof, e.g., $200,000 under section 401(a), indicates a clear intention on the part of the legislature to “take the profit out of drugs.”
The better solution, as exemplified in Bradley and Wagner, is to declare the entire section void and thus give the legislature the opportunity of correcting its own oversight. In both of those opinions the supreme court acknowledged the amendments of 1979, yet felt unable to apply them retroactively to the date of the respective convictions, both of which were prior to the effective date of the 1979 amendments. The result, of course, is to release some patently guilty defendants, but the long-range good in obtaining a consistent series of punishments is a necessary trade-off.
The opinion in Wagner has pointed out the problem. After reviewing the legislative amendments of 1979, Justice Clark said:
“Possession or delivery of a noncontrolled substance under section 404 still subjects one to a greater fine than may be imposed under sections 401(e) or (f) (Ill. Rev. Stat. 1979, ch. 561/2, par. 1401).” (89 Ill. 2d 308, 310, 433 N.E.2d 267, 268.)
A clearer signal for legislative action would be difficult to find.
Moreover, by invalidating the fine, the majority may only invalidate the amount thereof. Under section 5 — 9—1 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 9—1) a fine is an authorized disposition. The net result of the majority opinion is to leave standing a fine without any specific amount. In such case, section 5 — 9—1(a)(1) (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 9—1(a)(1)) is triggered. Since no fine is specified under the majority opinion, it becomes $10,000 under this section of the Code. This still puts it at odds with the fine specified in section 401(f) which is $5,000.
Although not pertinent to this discussion, it may well be inquired whether any $5,000 fine is authorized. Section 5 — 9—1(a)(1) of the Code provides for a fine of “$10,000 or the amount specified in the offense, whichever is greater” for a felony.
For all the foregoing reasons, I would follow Wagner and reverse the defendant’s conviction in its entirety.