Appeal from the Circuit Court of Cook County; the Hon. Stephen
Schiller, Judge, presiding.
JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
This appeal is taken from rulings in two cases which were consolidated for purposes of this appeal. Defendants were charged with unlawful use of weapons within five years of a prior felony conviction (Ill. Rev. Stat. 1981, ch. 38, pars. 24-1(a)(10), 24-1(b)) and each sought to exclude evidence of his prior felony convictions from consideration by the jury. Defendant Hollins offered to stipulate to his prior conviction outside the presence of the jury, and the trial court excluded evidence of that conviction from the jury. Defendant Palmer did not so stipulate and the trial court ordered a bifurcated proceeding under People v. Hayes (1981), 87 Ill.2d 95, 429 N.E.2d 490. The State filed interlocutory appeals from these rulings.
Defendant Joseph Palmer was charged by information with unlawful use of weapons within five years of a prior felony conviction. He waived his right to a jury and raised an objection to the unlawful use of weapons statute, arguing that if the trial court heard evidence of defendant's prior conviction for murder, defendant would not receive a fair trial. The court suggested that it would order a bifurcated proceeding in which the prior conviction would be considered by the sentencing court only after defendant was found guilty of misdemeanor unlawful use of weapons. The court commented that the information to be presented to the court as set forth in the charge would not cause prejudice to defendant because the case was being tried as a bench proceeding.
After the start of the trial, defendant indicated that he wished to withdraw his jury waiver and that he was unwilling to stipulate to his prior conviction. The court then ruled that it would not permit the State to prove the prior conviction to the jury as an element of the offense and indicated that it would order a bifurcated proceeding under Hayes.
Defendant Kenneth Hollins was charged by indictment with felony unlawful use of weapons and made a motion in limine to prohibit consideration by the jury of his prior conviction for burglary. The motion was granted by the court, and Hollins offered to stipulate to his conviction outside the presence of the jury.
In each case the State argued that, because the prior conviction was a factual element of the offense, the court's ruling would result in a verdict which was insufficient as a matter of law, and would therefore operate as a dismissal of the felony charge. The State then certified that the court's rulings substantially impaired its case as required under People v. Young (1980), 82 Ill.2d 234, 247, 412 N.E.2d 501.
The State now appeals the trial court's rulings disallowing evidence of defendants' prior convictions from being heard by the jury. Defendants contend that the rulings should be upheld under Hayes.
The Illinois Supreme Court has explicitly rejected the use of a bifurcated proceeding in circumstances similar to those of the case at bar. (People ex rel. Carey v. Pincham (1979), 76 Ill.2d 478, 394 N.E.2d 1043.) In Pincham, the supreme court said:
"The decisions of this court have established that proof of the prior conviction is necessary to a conviction on the felony charge. (People v. Edwards (1976), 63 Ill.2d 134; People v. Ostrand (1966), 35 Ill.2d 520.) These decisions have been followed by the appellate court, and in People v. Crawford (1978), 59 Ill. App.3d 211, the court held that where proof before the jury established only possession of a weapon, the conviction was for a misdemeanor only in spite of a stipulation out of the presence of the jury as to the defendant's prior conviction and incarceration. That court held that proof of the aggravating circumstances must come before the finding of guilt or innocence, which is consistent with the decisions of this court." 76 Ill.2d 478, 480.
This reasoning was followed by the appellate court in People v. Wright (1981), 98 Ill. App.3d 1089, 1092, 425 N.E.2d 42.
Defendants contend that, despite this line of cases, the trial court's rulings should be upheld under People v. Hayes (1981), 87 Ill.2d 95, 429 N.E.2d 490. Defendants argue that Hayes eliminated the need for introducing evidence of a prior conviction, for purposes of enhancing the degree of the offense, during the evidentiary stage of the trial. However, Hayes discussed the leading Illinois cases on the subject (People v. Dixon (1970), 46 Ill.2d 502, 263 N.E.2d 876; People v. Owens (1967), 37 Ill.2d 131, 225 N.E.2d 15; People v. Ostrand (1966), 35 Ill.2d 520, 221 N.E.2d 499, overruled on other grounds in People v. Bracey (1972), 51 Ill.2d 514, 519, 283 N.E.2d 685), which uniformly hold that it is proper to introduce evidence of prior convictions that serve to increase the degree of the offense during the evidentiary stage of the trial. Although we note that the supreme court in Hayes did not discuss Pincham, neither did it overrule the Ostrand line of cases upon which the Pincham decision was based. (See People v. Collins (1982), 109 Ill. App.3d 1076, 1081, 441 N.E.2d 935.) We also note that, in People v. Stapleton (1983), 115 Ill. App.3d 1067, 1070, 451 N.E.2d 584, the appellate court elected to follow Hayes over the Ostrand line of decisions. The court in Stapleton noted that Hayes did not overrule the Ostrand cases, but nonetheless cited Hayes in support of its decision not to require consideration by the jury of defendant's prior convictions in a felony unlawful use of weapons prosecution.
• 1 After careful consideration of Hayes and Stapleton, as well as of Collins and the Ostrand line of decisions which it follows, we must affirm the soundness of the Ostrand line of cases. (See People v. Ostrand (1966), 35 Ill.2d 520, 221 N.E.2d 499; People v. Owens (1967), 37 Ill.2d 131, 225 N.E.2d 15; People v. Edwards (1976), 63 Ill.2d 134, 345 N.E.2d 498; People ex rel. Carey v. Pincham (1979), 76 Ill.2d 478, 394 N.E.2d 1043; People v. Crawford (1978), 59 Ill. App.3d 211, 375 N.E.2d 1314.) We therefore find that defendants' position is not supported by the case law in Illinois, and that evidence of defendants' prior felony convictions should be presented to the jury as an element of the felony offense of unlawful use of weapons.
• 2 The State asks that costs be taxed against defendants. A conviction is the prerequisite for the assessment of costs. (See People v. Brown (1983), 98 Ill.2d 374; People v. DuMontelle (1978), 71 Ill.2d 157, 374 N.E.2d 205; People v. Nicholls (1978), 71 Ill.2d 166, 374 N.E.2d 194; People v. Halliday (1979), 73 Ill. App.3d 615, 392 N.E.2d 389; and Ill. Rev. Stat. 1981, ch. 53, par. 8.) No convictions having occurred, there is no authority for the assessment of costs.
For the reasons stated, this case is reversed and remanded for further proceedings in the circuit court of Cook County ...