The PEOPLE v. Luckey

245 N.E.2d 769, 42 Ill. 2d 115, 1969 Ill. LEXIS 315

• Court: Illinois Supreme Court
• Decided: January 29, 1969
• Docket: 41226
• Status: Published

Opinions

Mr. Justice Kluczynski

delivered the opinion of the court:

In a 1965 jury trial in the circuit court of Cook County, defendant, Jack Luckey, was found guilty of the unlawful sale of narcotics. Because of a previous Illinois narcotics violation, a mandatory sentence of life imprisonment was imposed, pursuant to the terms of section 38 of the Uniform Narcotic Drug Act. (Ill. Rev. Stat. 1965, chap. 38, par. 22 — 40.) His conviction was affirmed by the appellate court (90 Ill. App. 2d 325) and we granted leave to appeal.

In this court, defendant attacks the constitutionality of the following provision of section 38 which reads:

“Whoever violates this Act by traffic in, selling, prescribing, administering, or dispensing any narcotic drugs, shall be imprisoned in the penitentiary for any term from 10 years to life, and for any subsequent offense shall be imprisoned in the penitentiary for life. Any offense under this Act is a subsequent offense if the violator has been previously convicted of an offense under this Act or any previous Act of this State relating to narcotic drugs or of a felony under any law of the United States or of the District of Columbia relating to narcotic drugs. No probation or suspension of sentence shall be granted to any violator convicted under this paragraph.”

He argues that this provision does not classify a person previously convicted of narcotics violations under the laws of a sister State as a subsequent offender, and that this disparity of classification contravenes the equal-protection clause of the fourteenth amendment.

The State urges that defendant lacks standing to challenge the constitutionality of the provision because he did not raise this issue in the trial court. We agree. From the record, we find that he only questioned the applicability of the mandatory life sentence provision on the ground that his prior conviction in 1954, for possession of narcotic drugs was a misdemeanor and that the statute pertained to a prior felony conviction. The trial judge properly ruled that the provision pertained to previous convictions for any violation of the Illinois Narcotic Drug Act. In short, his argument in the trial court went to the construction of the statute upon which the trial court ruled, and not to the constitutionality of the statute upon which the trial court did not rule. The question of the constitutionality of a statute is properly preserved for review only when it has been raised in and passed upon by the trial court. People v. Hale, 31 Ill.2d 200; People v. Orr, 10 Ill.2d 95; People v. Cosper, 5 Ill.2d 97; People v. Brand, 415 Ill. 329; People v. Rohde, 403 Ill. 41; People v. Dwyer, 397 Ill. 599.

The judgment of the circuit court is therefore affirmed.

Judgment affirmed.

Mr. Justice Ward took no part in the consideration or decision of this case.