APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
J. PETRARCA, Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Defendant was charged by information with the crimes of armed robbery (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 18-2), aggravated kidnapping (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 10-2) and armed violence (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 33A-2). Following a jury trial, he was convicted of all three offenses and sentenced to three concurrent nine year terms.
On appeal, he contends that: (1) the trial court erred in entering judgment and sentence on both the armed violence and the armed robbery convictions, as both arose out of the same acts; (2) his conviction for armed violence cannot stand since the jury instruction failed to require that the jury determine the type of weapon used during the commission of the crime; and (3) the trial court erroneously sentenced defendant to an excessive period of incarceration when it misclassified aggravated kidnapping as a Class X crime during the sentencing procedure. The essential facts, with the exception of identification testimony, are not seriously disputed.
On November 28, 1978, at about 5:45 p.m. Lola Wakefield arrived at the Evergreen Plaza Shopping Center. She purchased a pair of gloves and some cosmetics and returned a few hours later to her car which was located in the shopping center's parking lot. Before reaching her car, she was approached by two men, one tall and one short. According to Wakefield, the short man was defendant, Michael Jones. The tall man, who was holding a gun, stated: "This is a stick-up." He then took car keys and other belongings from her and gave the keys to defendant. Defendant entered the front seat of the car, and the tall man forced the victim into the rear seat and sat next to him.
The three drove northbound on Western Avenue, eventually stopping at a filling station near 63d Street. Defendant discussed the possibility of robbing the station with the tall man, then drove to another shopping center located at 87th Street and the Dan Ryan Expressway. Upon arriving, defendant asked the victim if her charge plates were "any good." He left the car, but returned about one hour later carrying packages, one of which contained a shirt that he had bought. Defendant resumed driving the car eastbound, and stopped in an alley so that the victim could use "the washroom." After making a few more stops, they arrived at 103d Street and Sangamon at about midnight. The two assailants got out of the car, and the tall man hit the car with his gun and told the victim to drive off.
Wakefield drove the car directly to the 22d district police station and reported the incident. The next day, she went to a police lineup accompanied by Sergeant John Brines of the Evergreen Park Police Department, and identified defendant as the short man who had driven her car the previous night. The victim also identified some gloves as the ones taken from her during the robbery.
John Frank, an investigator for Visa Card Services, testified at trial that he could identify the time and location of a transaction with a Visa card by information imprinted on a sales draft. According to four sales drafts, transactions had been made on the night of the occurrence at the various locations which corresponded to places where the victim testified that car had stopped. Three drafts were signed by "Mr. Wakefield." On cross-examination, he admitted that no handwriting analysis was made comparing defendant's signature to the ones of the sales drafts.
Officer Walter Morgan of the Chicago Police Department testified that at about 7:15 p.m. on November 29, 1978, he received a call from Goldblatt's Department Store at 333 S. State, Chicago, regarding a man being held for the unlawful use of credit cards. When he arrested defendant at the store, Morgan found gloves in his coat that were later identified by the victim as the ones taken from her on the night of the crime.
Carl West, a security investigator for Goldblatt's testified that he held defendant for the Chicago police after learning that the Visa card that defendant used was obtained in an armed robbery on the previous day.
Defendant's mother and brother testified that defendant was in the basement of the mother's home throughout the entire evening of November 28, 1979. Defendant, testifying in his own behalf, denied any complicity in the crimes in question. He arrived at his mother's house at about 6 p.m. on November 28, 1978, and did not leave until the following day. On November 29, 1978, he took the elevated to the north side of Chicago for a job interview. When he was returning from the interview, he met some acquaintances on the elevated platform who offered him three credit cards in exchange for $35. Defendant purchased the cards and was apprehended when he attempted to use them in making a purchase at Goldblatt's later that evening. While he was in the security office at Goldblatt's, he noticed gloves on a table, along with several small items. All of these items were placed into an envelope by the police and carried away.
Defendant initially contends that the trial court erroneously entered judgment and sentence on his convictions for the crimes of armed violence and armed robbery, as both arose out of identical acts.
Where more than one offense is carved from a single physical act, multiple convictions prejudice the defendant (People v. King (1977), 66 Ill.2d 551, 368 N.E.2d 838, cert. denied (1977), 434 U.S. 894, 54 L.Ed.2d 181, 98 S.Ct. 273), and it is proper to enter a judgment and sentence only on the most serious of the offenses. (People v. Sass (1979), 73 Ill. App.3d 554, 392 N.E.2d 399.) Because both of the offenses in the instant case arose out of the same act (i.e., taking property from the victim, Lola Wakefield, by the use of a gun), judgment and sentence can stand only as to one. It is therefore necessary to determine which of the two offenses is the "more serious," and to vacate the judgment and sentence as to the other.
A person commits armed violence when, "* * * while armed with a dangerous weapon, he commits any felony defined by Illinois Law." (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 33A-2.) One is guilty of armed robbery when "`* * * he or she violates Section 18-1 [robbery] while he or she carries on or about his or her person, or is otherwise armed with a dangerous weapon." (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 18-2.) Violation of either of these statutes by the use of a handgun is a Class X crime punishable by 6 to 30 years' imprisonment. (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005-8-1(a)(3).) According to the information and jury instructions, the underlying felony relied upon by the State to support defendant's conviction for the crime of ...