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People v. Valentine

OPINION FILED MARCH 30, 1984.

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

v.

KENNETH VALENTINE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Morgan County; the Hon. Gordon D. Seator, Judge, presiding.

JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:

On May 13, 1983, defendant, Kenneth Valentine, and Tracey Jones were charged by an information filed in the circuit court of Morgan County with three counts of armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18-2). On June 27, 1983, defendant and Jones were charged by information with three counts of robbery based upon the same conduct as alleged in the armed robbery counts (Ill. Rev. Stat. 1981, ch. 38, par. 18-1).

At a hearing held on June 27, 1983, defendant and Jones pleaded guilty to the robbery charges. The trial court then accepted their guilty pleas and ordered that a sentencing hearing be held on July 19, 1983.

At the outset of defendant's July 1, 1983, bench trial on the armed robbery charges, the trial court dismissed the armed robbery charges against Jones pursuant to a plea agreement entered into between Jones and the State. At the conclusion of the bench trial, the trial court found defendant guilty of the three counts of armed robbery.

At the July 19, 1983, sentencing hearing, the trial court (1) sentenced defendant to concurrent terms of six years' imprisonment on each of the three armed robbery counts and to a term of three years' mandatory supervised release, and (2) ordered defendant to pay the sum of $1,433.90 as restitution to the victims and the sum of $235 in court costs. The trial court then vacated "the judgment of guilt as to [the three counts of robbery]" and dismissed those counts "as being lesser included offenses."

On appeal, defendant maintains that (1) the procedure used in this case violated his constitutional (U.S. Const., amend. V; Ill. Const. 1970, art. I, sec. 10) and statutory (Ill. Rev. Stat. 1981, ch. 38, par. 3-4) guarantees against double jeopardy, and (2) the State failed to prove beyond a reasonable doubt that defendant committed the offense of robbery while "armed with a dangerous weapon" (Ill. Rev. Stat. 1981, ch. 38, par. 18-2(a)).

• 1 Before examining the merits of defendant's double jeopardy argument, we must address the State's contention that defendant waived his right to present this issue on appeal by failing to object to the procedure at trial. (People v. Scales (1960), 18 Ill.2d 283, 164 N.E.2d 76.) The seriousness of a double jeopardy issue and the intimate relationship of the issue to the integrity and fairness of judicial proceedings warrant considering the issue as plain error (87 Ill.2d R. 615(a)). (People v. Pendleton (1979), 75 Ill. App.3d 580, 394 N.E.2d 496.) Accordingly, we conclude that defendant's failure to raise the double jeopardy issue either prior to or during the course of the July 1, 1983, bench trial did not constitute waiver of the issue for purposes of this appeal.

• 2 Defendant points out that (1) the robbery and armed robbery charges filed against him were based upon the same conduct, and (2) he was prosecuted for the offense of armed robbery after the trial court had accepted his guilty plea to the offense of robbery. Defendant asserts that this procedure violated his guarantee against double jeopardy.

The Supreme Court has determined that the fifth amendment guaranty against double jeopardy consists of three separate constitutional protections: (1) protection against a second prosecution for the same offense after acquittal; (2) protection against a second prosecution for the same offense after conviction; and (3) protection against multiple punishments for the same offense. (North Carolina v. Pearce (1969), 395 U.S. 711, 23 L.Ed.2d 656, 89 S.Ct. 2072.) This constitutional protection is codified in section 3-4 of the Criminal Code of 1961 which provides in part:

"(a) A prosecution is barred if the defendant was formerly prosecuted for the same offense, based upon the same facts, if such former prosecution: (1) Resulted in either a conviction or an acquittal * * *." Ill. Rev. Stat. 1981, ch. 38, par. 3-4(a).

• 3, 4 The established test for determining whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment was stated as follows in Blockburger v. United States (1932), 284 U.S. 299, 304, 76 L.Ed. 306, 309, 52 S.Ct. 180, 182:

"The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not."

Section 18-2(a) of the Criminal Code of 1961 provides that a person commits armed robbery when he or she commits robbery "while he or she carries on or about his or her person, or is otherwise armed with a dangerous weapon" (Ill. Rev. Stat. 1981, ch. 38, par. 18-2(a)). Because the included offense of robbery requires no proof beyond that which is required for conviction of the offense of armed robbery, we conclude that armed robbery is the "same offense" as robbery for purposes of double jeopardy. See Brown v. Ohio (1977), 432 U.S. 161, 53 L.Ed.2d 187, 97 S.Ct. 2221.

• 5 Moreover, in Brown the Supreme Court determined that if two offenses are the same under the Blockburger test for purposes of barring consecutive sentences at a single trial, the offenses necessarily will be the same for purposes of barring successive prosecutions. Here, defendant was prosecuted for an offense (armed robbery) after the trial court had accepted his guilty plea to an included offense (robbery). Accordingly, if jeopardy attached at the ...


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