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People v. Lewis

OPINION FILED FEBRUARY 15, 1983.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

JESSIE LEWIS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lake County; the Hon. John L. Hughes, Judge, presiding.

JUSTICE NASH DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 10, 1983.

After trial by jury defendant, Jessie Lewis, was found guilty of three counts of aggravated battery (Ill. Rev. Stat. 1979, ch. 38, par. 12-4) and two counts of armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A-2). He was sentenced to concurrent terms of six years for each armed violence conviction and to two years for one count of aggravated battery. Defendant appeals contending: (1) the State violated the mandatory joinder provisions of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, pars. 3-3, 3-4) by adding six new counts to its original information after defendant's first trial in which a mistrial had been declared; and (2) he was improperly convicted and sentenced for offenses based upon a single physical act.

The facts are not disputed by the parties. It appears that on August 16, 1980, during a dispute over the right to possession of an automobile, defendant fired a shot at John Strickland which struck him behind the left ear wounding him. Defendant was charged by a three-count information as follows:

Count I — attempt murder (Ill. Rev. Stat. 1979, ch. 38, pars. 8-4(a), 9-1(a)(1));

Count II — aggravated battery (w/deadly weapon) (Ill. Rev. Stat. 1979, ch. 38, par. 12-4(b)(1));

Count III — armed violence (predicated on the offense charged in count II) (Ill. Rev. Stat. 1979, ch. 38, par. 33A-2).

The case initially proceeded to trial on March 17, 1981, in which the jury returned a verdict finding defendant not guilty of attempted murder, but was unable to reach verdicts to the charges of aggravated battery and armed violence. After the court declared a mistrial as to counts II and III, the State expressed its intention to retry defendant for those offenses and the cause was continued.

On September 16, 1981, the State amended the information by adding six additional offenses based upon the August 16 shooting of John Strickland, as follows:

Count IV — aggravated battery (great bodily harm) (Ill. Rev. Stat. 1979, ch. 38, par. 12-4(a));

Count V — aggravated battery (permanent disability and disfigurement) (Ill. Rev. Stat. 1979, ch. 38, par. 12-4(a));

Count VI — aggravated battery (w/deadly weapon) (Ill. Rev. Stat. 1979, ch. 38, par. 12-4(b)(1));

Count VII — armed violence (predicated on count IV) (Ill. Rev. Stat. 1979, ch. 38, par. 33A-2); Count VIII — armed violence (predicated on count V) ...


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