[Note from transcriber: This case was found in the archives of the Illinois 1st Judicial District Appellate Court.  It is not available, nor published, via West. It has been copied, scanned and transcribed for the Web from the original filed documents. This case was scanned on 1/26/2000.]

NOTICE The text of this order may be changed or corrected prior to the time for filing of a Petition for Rehearing or the disposition of the same.

SECOND DIVISION
April 21, 1998

No. 1-97-2623

IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT

 
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,

V.

MARCOS TORRES, Defendant-Appellant.

) Appeal from the
) Circuit Court of
) Cook County.
)
) No. 95 CR 19711
)
) Honorable
) Kenneth J. Wadas,
) Judge Presiding.

ORDER

Following a jury trial, defendant Marcos Torres was convicted of unlawful use of a weapon and sentenced to an 18- month term of probation. On appeal, defendant contends that the trial court erred in denying his motion in arrest of judgment because he was exempt from criminal responsibility under section 24-2 (i) of the Criminal Code (Code). 720 ILCS 5/24-2 (i) (West 1996).

The facts in this case are undisputed, in the early morning hours of June 22, 1995, Chicago police officers Thomas Mason and Michael Tobin were on traffic patrol when they observed a car parked next to a fire hydrant in the 1400 block of Sherwin Avenue in Chicago. Officer Mason got out of the police car and began writing a ticket when he saw defendant's head "pop up" in the front seat of the vehicle. Officer Mason walked over to the driver's side of the vehicle and asked defendant what he was doing and if he had a valid driver's license. Defendant responded that he was sitting in the car listening to music with his girifriend and that he did not have a driver's license. Defendant and his girl friend stepped out of the car and went to the back of the car, where defendant placed his hands on the trunk. Officer Mason then asked defendant if there was "anything in the car he should know about. " Defendant stated that he had a gun in his car.

At approximately the same time, while conducting a cursory search of the car. Officer Tobin found a plastic gun case on the floor protruding from the back of the driver's seat. A .40 caliber semiautomatic pistol and a magazine with 11 rounds of ammunition were enclosed in the case. The gun was unloaded and the case was in a plastic grocery bag. Defendant had a valid firearm owner's identification (FOID) card, as well as a receipt for purchasing the gun.

During the course of the trial, defendant argued that he was exempt from criminal responsibility under section 24-2 (b) (4) of the Code. 720 ILCS 5/24-2 (b) (4) (West 1996) . Section 24-2 (b) (4) provides an exemption for the " [t] ransportation of weapons that are broken down in a non-functioning state or are not immediately accessible." 720 ILCS 5/24-2 (b) (4) (West 1996) . The court found as a matter of law that the gun was not "broken down" and the case went to the jury on the determination of whether the gun was immediately accessible. The jury returned a guilty verdict and defendant was sentenced to 18 months' probation.

Subsequently, defendant brought a motion in arrest of judgment arguing that he was not guilty because he was exempt from criminal responsibility under section 24-2(i) of the Code, which provides in pertinent part:

"Nothing in this Article shall prohibit, apply to, or affect the transportation, carrying, or possession, of any pistol *** which is unloaded and enclosed in a case, firearm carrying box, shipping box, or other container, by the possessor of a valid Firearm Owners Identification Card." 720 ILCS 5/24-2 (i) (West 1996).

The State did not object to defendant's motion and the trial court considered it on its merits.

Defendant cited People v. Bruner, 285 III. App. 3d 39 (1996) , in support of his argument. In Bruner, a woman walked into a courthouse carrying an encased, unloaded gun and a valid FOID card in her purse. The appellate court held that she was exempt under section 24-2(i) of the Code because the gun was unloaded, it was in a case and she possessed a valid FOID card. Bruner, 285 III. App. 3d at 44. The trial court denied defendant's motion, stating that Bruner was factually distinguishable from the case at bar because the facts in Bruner did not indicate that the defendant had ammunition in close proximity to the gun.

On appeal, defendant contends that the trial court erred by denying his motion in arrest of judgment. Defendant specifically argues that he was entitled to an excirption under section 24-2 (i) of the Code because his gun was unloaded, enclosed in a case and he possessed a valid FOID card at the time of his arrest.

Although the State mentions in its brief that defendant did not raise this issue until after trial, it does not argue that defendant waived this issue on appeal nor does it challenge the manner in which it was presented to the trial court. Instead, the State argues that the trial court was correct in finding that defendant was not exempt under section 24-2(i) of the Code because the gun was inmediately accessible and the ammunition was located in close proximity to the gun.

We acknowledge that the facts in Bruner do not indicate that the defendant was carrying ammunition for her gun, but the statutory exemption at issue contains no requirement regarding the absence or location of ammunition. Exceptions found in a statute are to be strictly construed. People v. Lofton, 69 III. 2d 67, 71 (1977); Bruner, 285 III. App. 3d at 42. The State contends that interpreting the exception in question to extend to defendant's conduct defeats the legislature's objective of protecting the public. The State points out that in Lofton, the Illinois Supreme Court recognized that the "unlawful use of weapons constitutes one of society's most grievous problems." Lofton, 69 III. 2d at 72. Nonetheless, a statute is to be interpreted and applied as it is written when it is permissible to do so under the Constitution, and it is not to be rewritten by a court in an effort to render it consistent with the court's view of sound public policy. People v. Lewis, 158 III. 2d 386, 391 (1994) . Any perceived deficiencies in the statute are best left for the legislature to address.

In this case, it is undisputed that the gun was unloaded and enclosed in a case and that defendant possessed a valid FOID card at the time of his arrest. Based on these facts, defendant clearly met the requirements set forth in section 24-2(i) of the Code and was therefore exempt from criminal responsibility. 720 ILCS 5/24-2 (i) (West 1996).

Accordingly, the judgment of the circuit court is reversed.

Reversed.

McNULTY, P.J., with RAKOWSKI and COUSINS, JJ., concurring.