APPEAL from the Circuit Court of McLean County; the Hon. JAMES
A. KNECHT, Judge, presiding.
JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:
We deal here with bootstrapping offenses into more serious convictions and the double enhancement of sentence.
The result is a mixed bag.
We affirm in part, reverse in part and remand.
Gresham was convicted by a jury of armed violence, aggravated battery, and two counts of unlawful use of weapons. He received concurrent sentences of 18 years' imprisonment for armed violence and 8 years on one of the unlawful use of weapons counts.
On appeal, defendant argues: (1) that the crime of armed violence may not be predicated upon the felony offense of aggravated battery with the use of a deadly weapon; (2) that the trial court erred in not severing that count of the indictment charging him with unlawful use of weapons within five years of his release from the penitentiary, following his conviction of a felony, from the trial on the other counts; and (3) that the court erred in imposing an extended-term sentence under section 5-5-3.2(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005-5-3.2(b)). For reasons hereinafter set forth, we vacate defendant's conviction and sentence on the offense of armed violence, remand for sentencing on the conviction of aggravated battery, vacate the extended-term sentence on the conviction for unlawful use of weapons by a felon, and remand for resentencing on counts IV and V.
The facts of the instant case are not in dispute. On the evening of December 2, 1980, defendant, Fred Hildebrandt, Bob Nicholas, and Glen Colaw had arranged to play basketball at a local church in Bloomington, Illinois. After stopping at defendant's grandmother's house, where he resided, to pick up a basketball, the four proceeded to the school. Before they arrived, Colaw noticed a Bloomington police officer approaching and pointed this out to defendant, who at the time was in violation of his parole on a prior robbery conviction and had in his possession a sawed-off shotgun. Seeing the police officer, defendant ran from the group back to his grandmother's house. Later in the evening defendant received a call from Nicholas asking him to meet Nicholas and Hildebrandt at the Central Catholic School on the corner of Chestnut and Roosevelt Streets. Defendant returned to the area where the rendezvous was to occur but none of the persons were present. After waiting approximately 30 minutes, defendant decided to return home.
During this time, Hildebrandt and Nicholas returned to defendant's grandmother's house to find that defendant was also not there and had left to meet them at the school. Hildebrandt and Nicholas then proceeded to walk back to the Central Catholic School. Defendant testified that while he was walking toward his grandmother's house, he saw two unidentified men approaching. Defendant stated that one of the men said, "You have come to the wrong place at the wrong time," and the other began moving toward him. He testified that he thought the men were going to attack him and so, in self-defense, fired the sawed-off shotgun. Defendant stated that he did not recognize the men due to the darkness and the manner in which they were dressed, and felt his actions were justified under the circumstances. After the shooting, defendant learned that the person he had shot was Mr. Hildebrandt, the person he had arranged to meet. Defendant then ran back to his grandmother's house. Hildebrandt summoned a local resident to call an ambulance and was then taken to the hospital. Defendant was subsequently arrested at his grandmother's, and the sawed-off shotgun was located there.
Defendant's first contention on appeal is that it was improper for a conviction and sentence to be entered on the crime of armed violence when the predicate felony offense is aggravated battery with a dangerous weapon. In support of this contention he relies solely upon the recent decision of People v. Haron (1981), 85 Ill.2d 261, 422 N.E.2d 627. The State, however, asserts the defendant has waived this issue since he did not raise it below and, secondly, that defendant's conviction for armed violence was not based upon the offense of aggravated battery with the use of a deadly weapon but was instead predicated upon the offense of an aggravated battery occurring at a public place.
In Haron, defendant was charged with one count of armed violence, one count of unlawful use of weapons, and two counts of aggravated battery. The statute proscribing armed violence provides:
"Armed violence — Elements of the offense. A person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois Law." (Ill. Rev. Stat. 1979, ch. 38, par. 33A-2.)
The armed violence charge in Haron was predicated upon the felony offense of aggravated battery with the use of a deadly weapon. On appeal from the ruling of the circuit court finding section 33A-2 unconstitutional, the Supreme Court of Illinois affirmed the order dismissing the indictment against Haron for armed violence but refused to hold the statute unconstitutional. The court analyzed similar statutory provisions from a number of jurisdictions and concluded that the armed violence statute should not be construed to allow prosecution for armed violence when the predicate felony offense is based on section 12-4(b)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 12-4(b)(1)), which has already been enhanced from a misdemeanor to a felony by the presence of a deadly weapon. The Haron court stated:
"Our review of the language of the statute and the authorities leads us to conclude that the General Assembly did not intend that the presence of a weapon serve to enhance an offense from misdemeanor to felony and also to serve as the basis for a charge of armed violence. In our opinion the requirement of section 33A-2 that there be the commission of a felony while armed with a dangerous weapon contemplates the commission of a predicate ...