Appeal from the Appellate Court for the First District;
JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:
Defendant Joseph Palmer was charged by information in Cook County with the felony offense of unlawful use of weapons under the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, pars. 24-1(a)(10), 24-1(b)). The information alleged that defendant committed the offense of unlawful use of weapons within five years of his release from the penitentiary for the felony offense of murder. Defendant waived his right to a jury, and the cause proceeded to a bench trial. During the State's opening remarks, the prosecutor commented on defendant's prior conviction. Defense counsel objected to evidence of defendant's prior felony conviction being introduced during the evidentiary stage of the trial. According to counsel, such information would likely prejudice the court against the defendant.
In response the trial judge noted that, if the case were being tried by a jury, he would in all likelihood preclude the State from introducing evidence before the jury regarding the defendant's prior conviction of a forceable felony. Under such circumstances, the court stated that it would order a bifurcated proceeding wherein defendant's prior conviction could be proved during a separate proceeding accompanying sentencing, should the defendant be found guilty of unlawful use of weapons. However, since the proceeding was a bench trial, the judge expressed his belief that the court could hear evidence regarding the defendant's prior conviction during the evidentiary stage of the trial without prejudice to the defendant.
After the court's comments, but before the first witness was sworn, defendant indicated that he wished to withdraw his jury waiver and that he was unwilling to stipulate to his prior conviction. In line with its earlier comments, the court then ruled that it would not permit the State to prove defendant's prior conviction to the jury. Citing People v. Hayes (1981), 87 Ill.2d 95, the court ruled that the State could establish the prior felony conviction during the sentencing hearing.
Similarly, defendant Kenneth Hollins was charged by indictment in Cook County with unlawful use of weapons within five years of a felony conviction. (Ill. Rev. Stat. 1981, ch. 38, pars. 24-1(a)(10), 24-1(b).) Prior to his trial, he filed a motion in limine which sought to exclude evidence of his prior burglary conviction from being presented to the jury. The defendant further requested that the court refrain from reading or otherwise bringing to the jury's attention references to the prior conviction contained in the indictment. The defendant also informed the court that he was willing to stipulate to his prior conviction outside the presence of the jury. Although the State objected, the court allowed defendant's motion, relying on Hayes.
The State filed interlocutory appeals from both these rulings under our Rule 604(a)(1), certifying that the orders, suppressing evidence of defendants' prior convictions, substantially impaired the State's ability to prosecute both cases as felonies. (87 Ill.2d R. 604(a)(1); People v. Young (1980), 82 Ill.2d 234.) The appellate court consolidated the two causes and reversed, with one justice dissenting. (120 Ill. App.3d 707.) It found 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. We granted defendants' petition for leave to appeal (87 Ill.2d R. 315).
The sole question presented is whether evidence of defendants' alleged prior felony convictions must be presented to the jury as an element of the felony offense of unlawful use of weapons.
The statute in question provides in pertinent part:
"Sec. 24-1. Unlawful Use of Weapons.
(a) A person commits the offense of unlawful use of weapons when he knowingly:
(10) Carries or possesses on or about his person, upon any public street, alley, or other public lands within the corporate limits of a city, village or incorporated town, except when an invitee thereon or therein, for the purpose of the display of such weapon or the lawful commerce in weapons, or except when on his land or in his own abode or fixed place of business, any pistol, revolver, stun gun or taser or other firearm.
A person convicted of a violation of * * * Subsection (a)(10) * * * commits a Class A misdemeanor * * *. A person convicted of a felony under the laws of this or any other jurisdiction, who, within 5 years of release from penitentiary or within 5 years of conviction if penitentiary sentence has not been imposed, violates any Subsection of this Section commits a Class 3 felony." Ill. Rev. Stat. 1981, ch. 38, pars. 24-1(a)(10), 24-1(b).
Under the statute, the State, to secure a felony conviction for unlawful use of weapons, must not only prove a violation of section 24-1(a) but, under section 24-1(b), it must also prove that this violation occurred within five years of a defendant's prior felony conviction or within five years of defendant's release from the penitentiary for a prior felony conviction. Without this additional proof, the offense is a misdemeanor. Accordingly, this court has consistently held that it is necessary to allege and prove the prior felony conviction in order to establish the felony offense of unlawful use of weapons. People v. Dixon (1970), 46 Ill.2d 502, 504; People v. Owens (1967), 37 Ill.2d 131, 132; People v. Ostrand (1966), 35 Ill.2d 520, 529 overruled in part on other grounds in People v. Bracey (1972), 51 Ill.2d 514. See also Spencer v. Texas (1967), 385 U.S. 554, 566-67, 17 L.Ed.2d 606, 615-16, 87 S.Ct. 648, 655 (allegation and proof of a prior conviction does not offend due process clause).
Further, in People v. Edwards (1976), 63 Ill.2d 134, the court held that a jury could not find a defendant guilty of felonious unlawful use of weapons when it was instructed to consider the prior conviction only on the issue of defendant's credibility. Under such circumstances, the court affirmed the unlawful-use-of-weapons conviction as a misdemeanor only, and remanded the cause for a proper sentence. In reaching this conclusion the court observed that "[i]t is settled that the State must allege and prove a prior conviction to establish the commission of felonious unlawful use of a weapon." (Emphasis added.) (63 Ill.2d 134, 138.) Although the State presented evidence of the defendant's prior conviction in Edwards, the jury was instructed to consider that evidence only on the issue of defendant's credibility. Since the prior conviction was "an element of the ...