Ill. Pattern Jury Instr. (Criminal) 17.15

A person

commits a subsequent offense of calculated criminal cannabis conspiracy when

he, having been convicted of the offense of ____, knowingly [(possesses) (produces) (delivers)

(manufactures) (possesses with intent to deliver) (possesses with intent to manufacture)] more

than [(30 grams of any substance containing cannabis) (20 cannabis sativa plants)], and he does

so as part of an agreement undertaken and carried on with two or more other persons, and he

[1] obtains anything of value greater than $500 from the [(possession) (production)

(delivery) (manufacture) (possession with intent to deliver) (possession with intent to

manufacture) (agreement)].

[or]

[2] organiz

es, directs, or finances the [(possession) (production) (delivery) (manufacture)

(possession with intent to deliver) (possession with intent to manufacture) (agreement)].

Committ

ee Note

720 ILCS

550/9 (West, 1999) (formerly Ill.Rev.Stat. ch. 561/2, §709).

Give I

nstruction 17.16.

The fir

st conviction must precede the conduct constituting the subsequent offense. See

People v. Phillips, 56 Ill.App.3d 689, 371 N.E.2d 1214, 14 Ill.Dec. 161 (5th Dist.1978); People

v. Miller, 115 Ill.App.3d 592, 450 N.E.2d 767, 71 Ill.Dec. 79 (2d Dist.1983).

Genera

lly, when the degree or class of an offense depends on a prior conviction, the State

must prove the existence of that prior conviction as an element of the offense. See People v.

Hicks, 119 Ill.2d 29, 518 N.E.2d 148, 115 Ill.Dec. 623 (1987); People v. Palmer, 104 Ill.2d 340,

472 N.E.2d 795, 84 Ill.Dec. 658 (1984); People v. Mays, 80 Ill.App.3d 340, 399 N.E.2d 718, 35

Ill.Dec. 652 (3d Dist.1980). However, 725 ILCS 5/111- 3(c), as amended by P.A. 86-964,

effective July 1, 1990, provides that a prior conviction when used to increase the classification of

an offense is not an element of the crime and may not be disclosed to the jury unless otherwise

permitted by the issues. As a result, after the effective date of P.A. 86 -964, prior convictions will

not be presented to the jury and this instruction should not be used. See People v. Kennard, 204

Ill.App.3d 641, 561 N.E.2d 1188, 149 Ill.Dec. 492 (1st Dist.1990). For offenses occurring after

June 30, 1990, use Instruction 17.13.

For a de

cision concerning the evidence required to prove a calculated drug conspiracy,

see People v. Harmison, 108 Ill.2d 197, 483 N.E.2d 508, 91 Ill.Dec. 162 (1985).

See Com

mittee Note to Instruction 17.05A if delivery is an issue.

See I

nstruction 17.13A, regarding the word “agreement.”

See 720 I

LCS 550/9(a) for the prior offense that will aggravate the penalty.

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See Instructions 4.15 and 4.16, defining the word “possession.”

If other

terms used in this instruction need to be defined, see the definitions contained in

Chapter 720.

Insert

in the blank the prior conviction.

Use appl

icable paragraphs and bracketed material.

The brack

eted numbers are p resent solely for the guidance of court and counsel and

should not be included in the instruction submitted to the jury.

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