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People v. Alexander

OPINION FILED SEPTEMBER 6, 1983.

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

v.

JEFFREY ALEXANDER, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Dwight McKay, Judge, presiding.

PRESIDING JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Rehearing denied October 25, 1983.

Defendant, Jeffrey Alexander, appeals from his convictions of armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18-2); burglary (Ill. Rev. Stat. 1979, ch. 38, par. 19-1); unlawful restraint (Ill. Rev. Stat. 1979, ch. 38, par. 10-3); and, armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A-2). The sentences imposed were concurrent terms of 20 years' imprisonment on both the armed robbery and armed violence counts; seven years' imprisonment on the burglary count; and three years' imprisonment on the unlawful restraint count.

Three grounds for reversal are presented by defendant: (1) that his four convictions are violative of the double jeopardy clause of the fifth amendment to the United States Constitution; (2) that the trial court clearly abused its discretion in determining his sentence; and (3) that his conviction for unlawful restraint should be vacated since it is based on the same act as the armed violence conviction. As the issue of reasonable doubt was not raised, only the pertinent evidence will be summarized.

On the afternoon of October 31, 1979, defendant broke into the Perkins' residence located in Flossmoor, Illinois. Armed with an Ivers-Johnson .22-caliber revolver, defendant grabbed complainant, Mrs. Leola Perkins, demanded her money and jewelry and, while brandishing the gun, threatened to return and kill her if she reported the incident to the police.

Upon discovering that complainant's husband and children were to arrive home later that afternoon, defendant compelled complainant to go to various rooms to secure jewelry and money in the total amount of $115. At one point, complainant ran for the front door, but defendant grabbed her around the neck before she could reach the outside. He then held complainant between his arm and body, and proceeded to strike her in the face three or four times while yelling obscenities at her. Dragging her down the hall back to the kitchen, defendant pushed complainant on the floor and told her to stay there as he continued to search through the purse.

For the fifth time, defendant made a demand for more money. Complainant, sensing his desperation, informed defendant that more money was available in her children's savings account. At gunpoint, complainant was then forced into her 1973 Buick Electra, and was instructed to drive to South Suburban Federal Savings located in Flossmoor Commons. On the way to the bank defendant told complainant that she was to go into the bank alone, withdraw funds from the account and, were she not to bring the money out, he would return and kill her as well as everyone in her family. Leaving the keys in the car with defendant, complainant entered the bank and immediately advised bank personnel of the situation. As an employee of the bank was telephoning the police, defendant drove off in the Buick Electra.

On the night of November 11, 1979, officers of the Crete police department found defendant sitting behind the wheel of complainant's car as it was parked along a street in Crete, located in Will County, Illinois. Following a registration check confirming that the vehicle had been stolen, the police officers placed defendant under arrest.

The State's Attorney of Will County thereupon charged defendant with the felony theft of complainant's car, in violation of section 16-1(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 16-1(a)(1)). After a bench trial in June 1980, defendant was found guilty as charged and received a three-year sentence. That conviction was affirmed by both the appellate and supreme courts>. People v. Alexander (1981), 99 Ill. App.3d 810, 425 N.E.2d 1386, aff'd (1982), 93 Ill.2d 73, 442 N.E.2d 887.

On February 4, 1980, a Cook County grand jury charged defendant with having committed armed robbery, burglary, home invasion, armed violence and unlawful restraint. Following a jury trial, defendant was found guilty of armed robbery, burglary, unlawful restraint and armed violence. From these convictions defendant now appeals.

I

• 1 We first consider defendant's contention that his Cook County convictions are violative of the double jeopardy clause of the fifth amendment to the United States Constitution. Specifically, he maintains that since these crimes, as well as the Will County felony theft, were not joined and tried in Cook County — the place of complainant's residence and South Suburban Federal Savings — the present action proceeded in violation of the constitutional prohibition against double jeopardy. We find this assertion to be without merit.

Defendant's reliance on People v. Zegart (1980), 83 Ill.2d 440, 415 N.E.2d 341, cert. denied (1981), 452 U.S. 948, 69 L.Ed.2d 961, 101 S.Ct. 3094, is misplaced. The Zegart court held that the double jeopardy clause was violated where the State attempted to charge defendant for reckless homicide, after he was already convicted of crossing over a highway dividing median. The State was thus precluded from using the same factual basis which led to the first conviction as the basis for the second conviction. 83 Ill.2d 440, 445.

Here, defendant was tried and convicted on completely distinct offenses, the commission of which occurred in two counties on two separate dates. Moreover, the State in no way attempted to prove that defendant committed armed robbery, burglary, armed violence and unlawful restraint in Cook County on October 31, 1979, by showing defendant's exertion of unauthorized control over the Buick Electra in Will County on November 11, 1979. Defendant cites the related case, People v. Alexander (1981), 99 Ill. App.3d 810, 425 N.E.2d 1386, aff'd (1982), 93 Ill.2d 73, 442 N.E.2d 887, for the proposition that the State is prohibited from bringing a second prosecution based on the same factual situation which led to a conviction in a prior trial. We do not question the accuracy of this statement of well-settled decisional law. However, we find no merit to defendant's assertion that the facts of this case warrant the application of such authority. The factual basis which led to the felony conviction in Will County was not used as the basis for the Cook County convictions; for, the Alexander ...


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