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People v. Nix

OPINION FILED JUNE 12, 1985.

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

v.

ERNEST MOSES NIX, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Knox County; the Hon. Daniel J. Roberts, Judge, presiding.

JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

Rehearing denied July 17, 1985.

The defendant, Ernest Moses Nix, was charged by information with the offenses of attempt (murder), two counts of armed violence, and three counts of aggravated battery. The charges stemmed from an assault upon Raymond Kimbell, the Knox County State's Attorney. The defendant was subsequently convicted of attempt (murder) and two counts of armed violence following a bench trial. The trial court imposed concurrent nine-year terms of imprisonment on each conviction.

The defendant is represented on appeal by the Office of the State Appellate Defender. Through counsel, the defendant appeals from his convictions of armed violence and challenges the propriety of the imposed sentences. The defendant has filed a supplementary brief pro se in which he appeals from his convictions. We affirm in part and vacate in part.

At trial, the victim testified that he was walking toward the Knox College gym when he was approached by the defendant. The defendant told Kimbell that he wanted to talk to him, but Kimbell indicated that he had nothing to say to the defendant. Kimbell had recently prosecuted the defendant's son, and there was to be a hearing on that matter later that afternoon. The defendant then drew a gun from his coat pocket, and, as Kimbell walked toward the defendant with his hands raised, fired two shots. When Kimbell attempted to disarm the defendant, both men fell, with Kimbell holding the defendant's gun hand on the ground. The defendant stated that he was going to kill Kimbell for framing his son, and during the struggle the gun discharged again. When the defendant told Kimbell that he would let Kimbell go, Kimbell released the defendant. As the two men stepped apart, the defendant raised the gun, pointed it at Kimbell, and pulled the trigger. The gun, however, did not discharge and the defendant shook his head and walked away. During the altercation with the defendant, Kimbell suffered a gunshot wound in his right hand.

The defendant testified that the shooting was accidental. According to the defendant, he stumbled backwards during the confrontation with Kimbell and Kimbell tripped, falling on top of him. The defendant removed the gun from his pocket after he fell because he was afraid that it might discharge. When Kimbell seized his arm during the struggle, the gun discharged, injuring Kimbell's right hand. The defendant denied that he fired the gun before the two men struggled on the ground.

The trial court found the defendant guilty of attempt (murder) and two counts of armed violence. The State had previously moved to nol-pros the counts of the information charging the defendant with aggravated battery. After denying the defendant's motion for a new trial, the court sentenced the defendant to three concurrent nine-year terms of imprisonment. The defendant then filed the instant appeal.

• 1 We initially address the issues raised by the defendant through counsel pertaining to the convictions of armed violence and the defendant's sentences. The defendant first argues that his armed-violence conviction under count III should be reversed because the presence of a dangerous weapon was used to doubly enhance the charge. According to the defendant, the use of a weapon served to enhance the offense first to aggravated battery and then again to armed violence. The defendant relies on People v. Haron (1981), 85 Ill.2d 261, 422 N.E.2d 627, wherein the court held that the presence of a weapon could not be used to enhance an underlying offense and then serve as the predicate offense for a charge of armed violence. The standard of Haron applies whether the underlying offense is enhanced from a misdemeanor to a felony or from a lesser felony to a greater felony. People v. Del Percio (1985), 105 Ill.2d 372, 475 N.E.2d 528.

In People v. Owens (1982), 109 Ill. App.3d 1150, 441 N.E.2d 908, the defendant was convicted of armed violence based on aggravated battery causing great bodily harm. The Owens court found that no Haron violation occurred because a dangerous weapon was not necessary to establish the predicate offense as a felony.

In the case at bar, the predicate offense of aggravated battery charged that the defendant caused great bodily harm to Raymond Kimbell by shooting him in the hand with a handgun. The instant armed-violence charge stated that the defendant, while armed with a dangerous weapon, committed aggravated battery in that he caused great bodily harm to the victim by shooting him in the hand.

We find in the instant case that the presence of a weapon was not used to doubly enhance the charges against the defendant. The charge of battery was enhanced to aggravated battery because the victim suffered great bodily harm, and the aggravated battery charge was enhanced to armed violence because the defendant was armed with a weapon. The weapon, therefore, was only used once for enhancement purposes.

• 2 The defendant also argues that his armed-violence conviction should be reversed because the legislature did not intend that the armed-violence statute be applied where the predicate felony contains its own enhancement provisions. The defendant bases this assertion on Busic v. United States (1980), 446 U.S. 398, 64 L.Ed.2d 381, 100 S.Ct. 1747.

The Busic case is not applicable to the case at bar. In Busic, the use of a firearm was an element included in the predicate felony. The enhanced offense also had as an element that a firearm was used. This inherent double enhancement distinguishes Busic from the case before us.

We further note that there is no legislative history from which we might extrapolate the legislature's intent as to double enhancement. We, consequently, decline to interpret the armed-violence statute in a way which would obviate the use of any enhanced felony as a predicate felony. The defendant's conviction of ...


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