Appeal from the Circuit Court of Saline County; the Hon.
Michael J. Henshaw, Judge, presiding.
JUSTICE WELCH DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 29, 1985.
After a jury trial in the circuit court of Saline County, defendant Roger D. Dale was found guilty of unlawful delivery of a controlled substance (two counts), unlawful possession of a controlled substance, unlawful possession of cannabis, unlawful use of weapons, armed violence (two counts), and possession of a firearm without required identification. The court sentenced defendant as to all eight counts. Defendant appeals.
Defendant was charged, convicted, and sentenced as follows: Count I, unlawful delivery of a controlled substance, more than 30 grams of a substance containing cocaine (sentence, 10 years); count II, unlawful use of weapons (fined $100); count III, unlawful possession of cannabis, more than 2.5 grams and not more than 10 grams (fined $100); count IV, unlawful delivery of a controlled substance, more than 10 grams and not more than 30 grams of a substance containing cocaine (six years); count V, unlawful possession of a controlled substance, more than 30 grams of a substance containing cocaine (six years); count VI, armed violence based on count V (10 years); count VII, armed violence based on count IV (10 years); and count VIII, possession of a firearm without a firearm owner's identification card (fined $100). The court also imposed a "street value" fine of $139,200.
Evidence at trial was as follows: Illinois Division of Criminal Investigation Special Agent Phillip Sylvester arranged to meet defendant at a motel parking lot; Sylvester and defendant stopped their automobiles so that the drivers' sides of the vehicles were adjacent. Each man warned the other that he had a gun. Sylvester displayed $5,000 in cash; defendant displayed a clear bag containing five smaller bags and stated that each contained one ounce of cocaine. Sylvester gave defendant the cash for one of the smaller bags. Sylvester then signaled other law enforcement officers who arrested defendant and removed the other four bags and a derringer from defendant's car. They also searched defendant, finding a small amount of cocaine and cannabis.
Defendant argues that this court should vacate the convictions as to counts IV through VII because they are "included" in the offense charged in count I. The State does not argue as to counts IV and V. A defendant may not be convicted of more than one offense based on a single physical act. With regard to multiple acts, a defendant may not be convicted of more than one offense where some are lesser included offenses. Multiple convictions and concurrent sentences are permitted in all other cases where a defendant has committed several acts, despite the interrelationship of those acts. When more than one offense arises from a series of closely related acts and the offenses are not, by definition, lesser included offenses, convictions with concurrent sentences can be entered. People v. King (1977), 66 Ill.2d 551, 565-66, 363 N.E.2d 838, 844-45.
• 1 The basis of count IV is the bag defendant handed to agent Sylvester. Count I is based on the four bags recovered from defendant's automobile. As only one "act" was involved, defendant's physical delivery of the single bag, the conviction and sentence as to count IV must be vacated.
• 2 Count V is based on possession of the substance which is the basis of the delivery charges in count I. Unlawful possession of a controlled substance is an included offense of unlawful delivery of a controlled substance. (People v. Lewis (1980), 83 Ill.2d 296, 415 N.E.2d 319.) The conviction and sentence as to count V is vacated.
• 3 We turn to counts VI and VII, the armed violence counts. Defendant contends that both armed violence convictions are "included" in the delivery of cocaine conviction (count I); that count VII and count I are based on the same physical act; that count VII must be vacated because with count IV vacated there is no underlying felony as to count VII; and that count VI is based on the same physical act as count V. At this time authority on the relationship of the armed violence statute to controlled substances violations is scant. The general rule is that two convictions may not be had based on the same acts or closely related acts if one is "included" in the other. (People v. King (1977), 66 Ill.2d 551, 566, 363 N.E.2d 838, 845.) In the instant context, an "included" offense is an offense which is established by proof of the same or less than all of the facts required to establish the commission of the offense charged. (Ill. Rev. Stat. 1983, ch. 38, par. 2-9(a).) A person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois law. Ill. Rev. Stat. 1983, ch. 38, par. 33A-2.
In count I, defendant was charged with delivering 30 grams or more of cocaine; in count VI, with possessing 30 grams or more of cocaine while armed with a pistol; and in count VII, with delivering more than 10 grams but not more than 30 grams of cocaine while armed with a pistol. Neither count VI nor count VII is "included" in count I; counts VI and VII both require proof not required as to count I, i.e., that defendant was armed with a pistol.
• 4 Are counts I and VII based on the same physical act? Both counts concern delivery of cocaine, though not of the same amounts. We are of the opinion that no more than one "delivery" occurred under the instant facts. Defendant and Sylvester met but once; a single packet was exchanged; while defendant was found guilty of delivering the other four packets, there was no physical delivery of those packets. (Cf. People v. Lenoir (1984), 125 Ill. App.3d 260, 267, 465 N.E.2d 1027, 1032 (the court concluding that only one offense of armed violence occurred based on possession of a controlled substance even though the defendant possessed two different controlled substances).) That two different amounts of cocaine are referred to in the two counts is likewise of no importance, this difference being a product of the way in which the information was drafted, not defendant's actions. Count VII must be vacated.
Since count VII must be vacated, we need not consider defendant's contention that our vacating count IV leaves count VII without an underlying felony to support it. However, we note the following: Defendant's argument in this regard implies a view that the underlying felony need not only be committed, but must also be the subject of a conviction. Were this true, a conviction for armed violence could never stand alone. This is not true. See People v. Lenoir (1984), 125 Ill. App.3d 260, 465 N.E.2d 1027; Ill. Rev. Stat. 1983, ch. 38, par. 33A-2.
• 5 Is count VI based on the same physical act as count V? Assuming that it is, we need not disturb count VI, as count V must be vacated. Is count VI based on the same physical act as count I? In our view, at most the two counts pertain to a series of related acts, which may result in multiple convictions and concurrent sentences. (See People v. King (1977), 66 Ill.2d 551, 566, 363 N.E.2d 838, 844.) It is true that possession of a controlled substance is an included offense of delivery (People v. Lewis (1980), 83 Ill.2d 296, 415 N.E.2d 319); however, as we have noted above, possession of cocaine while armed with a dangerous weapon is not. Delivery of a controlled substance is one act; driving one's car while in possession of a controlled substance and a dangerous weapon is quite another. In the instant case the acts are closely related; appropriately, the instant convictions based on those acts are the subject of concurrent sentences.
Recapitulating, defendant's convictions and sentences as to counts IV, V, and VII are vacated; pending our further discussion, the convictions and sentences as to ...