APPEAL from the Circuit Court of Jefferson County; the Hon.
CLARENCE E. PARTEE, Judge, presiding.
MR. PRESIDING JUSTICE CARTER DELIVERED THE OPINION OF THE COURT:
Defendant Walter Tony Flippen was convicted in a bench trial of the crime of felonious unlawful use of weapons pursuant to section 24-1(a)(10), (b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 24-1(a)(10) and (b)) and sentenced to the Illinois Department of Corrections for a minimum of three years and a maximum of nine years.
The indictment in this case read as follows:
"That on the 30th day of April, 1975, in said County, WALTER TONY FLIPPEN committed the offence of Unlawful Use of Weapons in that said Walter Tony Flippen, having been convicted of a felony and having been released from the Penitentiary within five (5) years, did knowingly possess in a 1971 Dodge Charger bearing 1975 Illinois Registration CN5280 within the corporate limits of the City of Mount Vernon, Jefferson County, Illinois, a loaded .357 caliber magnum pistol at a time when he was not on his own land or in his own abode or fixed place of business in violation of Paragraph 24-1(a)(10), Chapter 38, Illinois Revised Statutes."
• 1 On appeal defendant contends only that his sentence must be reduced from a Class 3 felony to a Class A misdemeanor, on the grounds that there was no competent evidence of his prior conviction introduced at trial. He does not seek a new trial, therefore, we cannot consider any errors in the admission or rejection of evidence. (Chiribes v. Bjorvik, 100 Ill. App.2d 150, 241 N.E.2d 626.) The court in Chiribes stated:
"Any error in the admission or rejection of evidence by the trial court can be considered by the Appellate Court only when a new trial is requested, and not when the sole request is for an outright reversal. * * * Gundich v. Emerson-Comstock Co., 21 Ill.2d 117, at 128, 171 N.E.2d 60. Defendants have circumscribed the relief they may obtain in this court and waived any errors in the admission or exclusion of evidence by the trial court. McCottrell v. Benson, 32 Ill. App.2d 367, 178 N.E.2d 144; * * *."
At the trial the State called three witnesses whose testimony was directed towards proving Flippen's prior conviction, and his being released on parole. The first witness was a parole agent who identified Flippen as being "on parole" to him from the State penitentiary at Menard.
The State's second witness was a records clerk from Menard. He produced records from Menard compiled on a "Tony Flippen" that included photographs, a certified mittimus from Marion County, a dressout slip, and parole papers. The mittimus, dated August 16, 1973, stated that Flippen was being committed for 1-3 years for the offense of theft (over $150).
All the State's exhibits that were directed towards proving Flippen's prior conviction were admitted over defense counsel's objections that they were not the best evidence or that there should have been copies of the indictment and judgment order attached to the mittimus.
The third witness for the State was a State parole counselor for the district in which Mount Vernon is located. He testified that the State's first witness had called him in April of 1974 and advised him that one of his parolees, Flippen, had been arrested, and asked that he (third witness) follow up the case. He testified that he saw Flippen on that occasion and on a later occasion shortly after the incident on which this conviction is based. His interview with Flippen after the April 1975 incident dealt with the possession of the gun involved.
The fourth, fifth and sixth witnesses for the State were the occupants of the car in which the defendant was seated. They testified that the defendant had in his possession on April 30, 1975, in Mt. Vernon, Illinois, a loaded .357 magnum pistol. Shortly after he handed it to one of the witnesses in the back seat, the gun discharged, killing one of the occupants of the car. The remaining witnesses were the sheriff of Jefferson County, one of his deputies, and two members of the Mt. Vernon Police Department. Their testimony concerned the identification of the gun, a police report of the incident and a statement of the defendant regarding possession of the gun.
Flippen did not testify at the trial and he presented no defense. At the conclusion of the testimony and oral arguments by counsel, the court found the defendant guilty as charged. He waived a presentence investigation and report. At the sentencing hearing the prosecution introduced certified court records showing Flippen's two prior felony convictions.
The unlawful use of weapons, section 24-1(a)(10) of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 24-1(a)(10)), is a Class A misdemeanor, unless the offender falls within section 24-1(b) (Ill. Rev. Stat. 1975, ch. 38, par. 24-1(b)), which provides:
"A person convicted of a felony under the laws of this or any other jurisdiction, who, within 5 years of release from penitentiary or within 5 years of conviction if penitentiary sentence has not been imposed, violates ...