Appeal from the Circuit Court of Cook County; the Hon. John N.
Hourihane, Judge, presiding.
JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Following a bench trial in the circuit court of Cook County, defendant was found guilty of the offense of unlawful use of weapons (Ill. Rev. Stat. 1983, ch. 38, par. 24-1(a)(2)), then sentenced to the penitentiary for a term of three years. Defendant now appeals from that judgment contending that he was improperly convicted of a felony offense where the State failed to allege his prior conviction in the indictment.
The record shows that the incident giving rise to the charge against defendant took place in the early morning hours of February 12, 1984, on the south side of Chicago. Five days after the incident, defendant entered a plea of guilty to the information which charged him with a weapons offense occurring within one year after his release from the Illinois Department of Corrections, where he had served a term for armed robbery. As a result of his plea, he was sentenced to a term of three years' imprisonment.
On April 3, 1984, the trial court granted defendant's motion to vacate this plea and the State sought to reinstate the charges through an indictment. A true bill was returned by the May grand jury, but the indictment was later found to be faulty, and evidence of the crime was presented to the August grand jury. The indictment which followed charged that defendant had committed the offense of unlawful use of weapons in that he:
"Unlawfully carried and possessed with intent to use against another, a dangerous knife, in violation of ch. 38, sec. 24-1(a)(2) of the Illinois Revised Statutes 1983 as amended * * *."
Prior to trial, defendant filed a pro se motion to bar prosecution alleging, inter alia, that no police report relevant to the original charge ever existed, and that the indictment was based solely upon the testimony of an incompetent witness. Defendant's motion was denied by the court, and the matter proceeded to trial.
At that time, Officer Ronald Condreva testified that about 5:30 a.m. on February 12, 1984, he and his partner, Daniel Lukensmeyer, received a call concerning a shooting on the street and responded to the area of 4724 South Shields. When they arrived at this location, there was no evidence of a crime, and the officers stepped out of their car to investigate. Lukensmeyer went up to the house, and Condreva approached defendant, whom he observed crouched down between two parked cars. Defendant stepped out into the street, reached into his coat pocket, and told the officer that he had better have his gun cocked. Condreva told him to stop, and as he reached for his gun, defendant took his hand out of his coat pocket, pointed a 13-inch butcher knife towards him and said, "Fuck you." The officer called for his partner, and after a short struggle, defendant was disarmed and placed under arrest.
The State then rested its case in chief, and defense counsel made a motion for a directed finding. The court reserved its ruling on the motion, and defendant's brother, Robert Vaughn, testified on behalf of his brother.
Vaughn stated that about 5:30 a.m. on the day in question, he heard noises emanating from the outside of his residence. When he looked out the window, he saw police officers shoving his brother between two cars parked on the street. At that time, he did not know that the man involved was his brother, and he did not see a knife in his brother's hand nor guns drawn by the police.
Defendant testified that he was coming home from his girlfriend's house that morning when police officers pulled up, ran into his yard with their guns drawn and accused him of calling them. He denied the accusation, but was placed in a squad car, handcuffed and taken to the station. He saw the police recover a knife from his yard, and when he was in custody was told by police that the knife was recovered from him. Defendant denied pointing a knife at the officers, threatening them, or directing abusive language at them. He did admit, however, that he had been convicted of armed robbery in 1980, and was currently on parole for that offense, and he knew that carrying a knife was a violation of parole.
The defense rested and Officer Lukensmeyer testified in rebuttal. He stated that when he and his partner arrived at the Shields address, he walked to within five feet of the door of the house when his partner called to him in an excited state. He turned and saw him struggling with the defendant in the street and helped apprehend defendant. Under examination by the court, he stated that he first saw defendant crouched between the cars when they pulled up, and that his partner walked towards defendant as he headed for the house.
The court denied defendant's motion for a directed finding, and after hearing the arguments of counsel entered a finding of guilty. Defendant's written motion for a new trial was also denied, and at the sentencing hearing which followed the State pointed out in aggravation that defendant had been convicted of armed robbery in 1981 and sentenced to eight years in the Illinois Department of Corrections. The State argued that he was eligible for an extended term of imprisonment and recommended a five-year sentence. Defense counsel noted that the court had defendant's social and criminal histories before it, and requested that defendant be sentenced to a minimum term. Defendant was sentenced to three years' imprisonment.
In this appeal from that judgment, defendant contends that he was improperly convicted of felonious unlawful use of weapons where the State failed to allege his prior conviction. Defendant argues that since there was no mention of the felony enhancement provision in the indictment, he was only charged with a misdemeanor, and consequently his felony sentence must be vacated and the cause remanded for resentencing on the misdemeanor conviction. The State initially responds that defendant has waived consideration of this issue by failing to include it in his post-trial motion; but notwithstanding the waiver, asserts that the assignment of error is without merit since defendant had sufficient notice that he was charged pursuant to the felony enhancement provision of the weapons statute and that he was not prejudiced by the omission of his prior felony conviction in the indictment.
• 1 At the outset we find the State's waiver argument to be without merit. If the issue is correctly characterized by the State as a challenge to the sufficiency of the charging instrument, the State's waiver argument is inappropriate, since it is well settled that such a challenge may be raised for the first time on review. (See, e.g., People v. Johnson (1979), 69 Ill. App.3d 248, 387 N.E.2d 388.) Moreover, the waiver rule is a limitation on the parties and not on the courts, and a reviewing court may ignore a waiver where the interests of substantial justice so require. (People v. Walsh (1981), 101 Ill. App.3d 1146, 428 N.E.2d 937.) In the instant case, the record shows that the issue was not raised at trial or in a post-trial motion; ...