{
  "id": 75399,
  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. TONY P. JANOWSKI, Defendant-Appellee",
  "name_abbreviation": "People v. Janowski",
  "decision_date": "1996-05-09",
  "docket_number": "Nos. 4\u201495\u20140193, 4\u201495\u20140194 cons.",
  "first_page": "634",
  "last_page": "638",
  "citations": [
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      "cite": "279 Ill. App. 3d 634"
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  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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    "name": "Ill."
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      "year": 1992,
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    {
      "cite": "149 Ill. 2d 201",
      "category": "reporters:state",
      "reporter": "Ill. 2d",
      "case_ids": [
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      "year": 1992,
      "pin_cites": [
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          "page": "217-19"
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  "analysis": {
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  "last_updated": "2023-07-14T19:15:35.504495+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. TONY P. JANOWSKI, Defendant-Appellee."
    ],
    "opinions": [
      {
        "text": "PRESIDING JUSTICE COOK\ndelivered the opinion of the court:\nThis court is asked to determine what must be pleaded to state an offense under section 5 \u2014 25(a) of the Fish and Aquatic Life Code (Code) (515 ILCS 5/5 \u2014 25(a) (West 1992)).\nDefendant Tony P. Janowski was charged by information with unlawful possession of protected aquatic life for commercial purposes, a Class 3 felony, in violation of section 5 \u2014 25(a) of the Code. 515 ILCS 5/5 \u2014 25(a) (West 1992). The information alleged defendant \"for profit or commercial purposes knowingly possessed aquatic life protected by the fish code of Illinois contrary to the provisions of that code in that said defendant possessed turtles and snakes valued in excess of $300.00.\u201d The State also filed a complaint for forfeiture of defendant\u2019s 1987 Toyota van based upon its use in the commission of the offense.\nDefendant moved to dismiss both the information and the complaint for forfeiture because they failed to allege that the aquatic life \"was taken from waters and lands wholly or in part within the boundaries of the State of Illinois as required by 515 ILCS 5/10 \u2014 75 [(West 1992)].\u201d\nAt the hearings on defendant\u2019s motions to dismiss, the State contended that section 10 \u2014 75 of the Code was inapplicable to the charged offense, and thus the State did not need to allege that defendant possessed aquatic life from waters wholly or partially in Illinois. The trial court stated that since the statute was vague and unclear, the question should be resolved in defendant\u2019s favor. Accordingly, the trial court dismissed the complaint for forfeiture and the criminal information. The State appeals both dismissals. The cases have been consolidated on appeal.\nSection 5 \u2014 25 provides:\n\"(a) Any person who, for profit or commercial purposes, knowingly captures or kills, possesses, offers for sale, sells, offers to barter, barters, offers to purchase, purchases, delivers for shipment, ships, exports, imports, causes to be shipped, exported, or imported, delivers for transportation, transports or causes to be transported, carries or causes to be carried, or receives for shipment, transportation, carriage, or export any aquatic life, in part or in whole of any of the species protected by this Code, contrary to the provisions of the Code, and that aquatic life, in whole or in part, is valued in excess of a total of $300, as per value specified in subsection (c) of this Section, commits a Class 3 felony.\n(c) For purposes of this Section, the value of all species protected by this Code, whether dressed or not dressed, is as follows:\n* * *\n(3) For processed turtle parts, $6 for each pound or fraction of a pound. For each non-processed turtle, $8 per turtle.\n(4) For frogs, toads, salamanders, lizards, and snakes, $2 per animal in whole or in part.\u201d 515 ILCS 5/5 \u2014 25(a), (c)(3), (c)(4) (West 1992).\nSection 5 \u2014 25 does not in itself proscribe any specific behavior. Instead, section 5 \u2014 25 enhances the penalty for various fishing regulation misdemeanors where the offender was a commercial fisherman or fished for profit. The legislature deemed an enhanced penalty appropriate in such cases because those who fish for profit have a greater incentive to take aquatic life illegally than sport fishermen, and commercial fishermen have the means to take a far greater amount of fish than sport fishermen. See People v. Hamm, 149 Ill. 2d 201, 209-10, 595 N.E.2d 540, 543-44 (1992).\nThe essential elements of an enhanced section 5 \u2014 25 charge based on possession are that defendant (1) for profit or commercial purposes, (2) knowingly (3) possessed (4) protected aquatic life, (5) contrary to the provisions of the Code, (6) valued in excess of $300. The key to the present case is element five. As section 5 \u2014 25 is a compound offense, there must be an underlying or predicate violation before there can be liability. The predicate violation may be a violation of some other Code section or a violation of an administrative rule. Rules adopted by the Illinois Department of Conservation \"shall be enforced in the same manner as are any other provisions of [the] Code.\u201d 515 ILCS 5/1 \u2014 125 (West 1992). The supreme court has ruled, however, that it offends the due process and proportionate penalty clauses of the Illinois Constitution to base a section 5 \u2014 25 felony charge on some of the more minor Code infractions. Hamm, 149 Ill. 2d at 217-19, 595 N.E.2d at 547-48.\nWhether the State must plead and prove the defendant possessed aquatic life from Illinois lands or waters depends upon the nature of the underlying offense. The Code as a whole applies not only to aquatic life from Illinois, but also to aquatic life which is brought into Illinois. See 515 ILCS 5/5 \u2014 10 (West 1992). However, certain portions of the Code apply only to aquatic life originating from Illinois. Article 10 of the Code applies \"only to aquatic life in waters and lands wholly or in part within the boundaries of the State of Illinois.\u201d 515 ILCS 5/10 \u2014 75 (West 1992). Article 10 is largely concerned with the means by which protected animals may be captured and taken, as well as size and creel limits. For example, section 10 \u2014 60 of the Code under article 10 makes it unlawful to take turtles by use of seines. 515 ILCS 5/10 \u2014 60 (West 1992). If a violation of section 10 \u2014 60 predicates a section 5 \u2014 25 offense, then the State must plead that the turtles were captured in Illinois waters. Likewise, certain administrative rules apply only to Illinois wildlife. Section 880.10 of title 17 of the Illinois Administrative Code provides that \"[i]t is unlawful to take, possess, buy, sell, offer to buy or sell or barter any reptile, amphibian, or their eggs or parts taken from the wild in Illinois for commercial purposes unless otherwise authorized by statute.\u201d 17 Ill. Adm. Code \u00a7 880.10, at 17 \u2014 880\u20141 (1994).\nIn contrast, section 25 \u2014 20 of the Code may only be violated if the aquatic life comes from outside Illinois. 515 ILCS 5/25 \u2014 20 (West 1992). Section 25 \u2014 20 makes it unlawful to knowingly transport into Illinois protected aquatic life that was illegally taken contrary to the laws, rules and regulations of the state of origin. Thus, a section 5 \u2014 25 felony offense could be predicated upon importing muskellunge from Minnesota, if the fish were taken contrary to Minnesota law.\nHere, neither the criminal information nor the civil forfeiture complaint specified which Code provision defendant violated by possessing snakes and turtles. The information merely parrots the language of section 5 \u2014 25 in stating defendant\u2019s possession was \"contrary to the provisions of that Code.\u201d In contrast, the complaints filed in Hamm listed specific Code violations that formed the basis of a section 5 \u2014 25 charge. See Hamm, 149 Ill. 2d at 206-07, 595 N.E.2d at 542. Because the pleadings in the present case do not state the nature of the underlying Code violation, it is impossible to know whether the State must plead and prove that defendant took the snakes and turtles from Illinois waters.\nThe State contends defendant has waived on appeal any claim that the pleadings were defective for failing to specify an underlying offense because defendant moved to dismiss the pleadings solely oh the grounds that they failed to allege the aquatic life was taken from Illinois waters. We disagree. The issue of what elements must be pled is intertwined with the necessity of pleading an underlying offense. When an information is attacked before trial, the information must strictly comply with the pleading requirements set forth in section 111 \u2014 3(a) of the Code of Criminal Procedure of 1963 (725 ILCS 5/111 \u2014 3(a) (West 1992)). People v. Hughes, 229 Ill. App. 3d 469, 471, 592 N.E.2d 668, 669 (1992). Among the requirements of section 111\u2014 3(a) are that the complaint cite the statutory provision alleged to have been violated and set forth the nature and elements of the offense charged. 725 ILCS 5/111 \u2014 3(a)(2), (a)(3) (West 1992). The mere allegation that defendant acted contrary to the provisions of the Code is insufficient to apprise defendant of the nature and elements of the offense where the various Code provisions may be violated in a multitude of ways. The trial court correctly dismissed the information and the forfeiture complaint.\nFor the foregoing reasons, the judgments of the circuit court of Logan County in case Nos. 94 \u2014 CF\u201492 and 94 \u2014 MR\u201449 are affirmed.\nAffirmed.\nSTEIGMANN and GARMAN, JJ., concur.",
        "type": "majority",
        "author": "PRESIDING JUSTICE COOK"
      }
    ],
    "attorneys": [
      "Timothy J. Huyett, State\u2019s Attorney, of Lincoln (Norbert J. Goetten, Robert J. Biderman, and David E. Mannchen, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People.",
      "Daniel D. Yuhas and Janieen R. Tar ranee, both of State Appellate Defender\u2019s Office, of Springfield, for appellee."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. TONY P. JANOWSKI, Defendant-Appellee.\nFourth District\nNos. 4\u201495\u20140193, 4\u201495\u20140194 cons.\nOpinion filed May 9, 1996.\nTimothy J. Huyett, State\u2019s Attorney, of Lincoln (Norbert J. Goetten, Robert J. Biderman, and David E. Mannchen, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People.\nDaniel D. Yuhas and Janieen R. Tar ranee, both of State Appellate Defender\u2019s Office, of Springfield, for appellee."
  },
  "file_name": "0634-01",
  "first_page_order": 652,
  "last_page_order": 656
}