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People v. Rollins

OPINION FILED NOVEMBER 20, 1985.

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

v.

CHESTER LAMONTE ROLLINS ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Saline County; the Hon. William A. Lewis, Judge, presiding.

PRESIDING JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

Defendant, David Rollins, was indicted on four counts of murder, four counts of armed violence, two counts of attempted murder, two counts of voluntary manslaughter, two counts of aggravated battery, two counts of unlawful use of weapons, one count of reckless conduct, one count of involuntary manslaughter, and one count of misdemeanor criminal damage to property. A jury found David Rollins guilty of aggravated battery, reckless conduct, criminal damage to property, and one count of unlawful use of weapons, and not guilty as to the remaining charges. David Rollins was sentenced to 30 months' probation on the aggravated battery conviction and ordered to pay restitution of $3,589 as an incident of that probation. David Rollins contends that the verdicts of not guilty on the armed violence charges are legally inconsistent with the guilty verdicts on the aggravated battery charges. He also contends that the case should be remanded for a determination of his ability to pay restitution.

Chester Rollins was charged with six counts of armed violence, one count of reckless conduct, two counts of aggravated battery, one count of involuntary manslaughter, two counts of voluntary manslaughter, one count of criminal damage to property, two counts of unlawful use of weapons and two counts of attempted murder. Chester Rollins was found guilty of reckless conduct, criminal damage to property, and one count of unlawful use of weapons. He was found not guilty as to the remaining charges.

William Rollins and Charles Witherspoon were charged with four counts of armed violence, one count of reckless conduct, two counts of aggravated battery, one count of involuntary manslaughter, two counts of voluntary manslaughter and two counts of unlawful use of weapons. William Rollins and Charles Witherspoon were found guilty of unlawful use of weapons. They were found not guilty as to all remaining charges.

Chester Rollins, William Rollins, and Charles Witherspoon were sentenced to one year probation and, as incidents of that probation, were sentenced to 100 days' imprisonment and ordered to pay a fine of $500. These defendants contend that they should receive credit toward their fines for time spent in custody prior to being sentenced.

The charges in this case arose from an ongoing dispute between the Rollins family and the Gulley family. The feud resulted in a shoot-out on January 23, 1982, in which Edith Gulley was killed and Cecil Gulley was wounded.

The charges of armed violence contained in the indictments as they related to defendant David Rollins and his alleged attacks upon Cecil Gulley are as follows:

"That on January 23, 1982, in Saline County, David L. Rollins committed the offense of ARMED VIOLENCE in that the said defendant, while armed with a dangerous weapon, a .38-caliber Ruger pistol, performed acts prohibited by Illinois Revised Statutes, Chapter 38, Section 12-4(a) in that he knowingly, and without legal justification, shot Cecil Gulley in the back, thereby causing great bodily harm to Cecil Gulley in violation of Paragraph 33A-2, Chapter 38, Illinois Revised Statutes."

Count XIII of the indictments charged:

"That on January 23, 1982, in Saline County, David L. Rollins committed the offense of AGGRAVATED BATTERY in that the said defendant, in committing a Battery, in violation of Illinois Revised Statutes, Chapter 38, Section 12-3, without legal justification, and by use of a deadly weapon, a .38-caliber pistol, knowingly caused bodily harm to Cecil Gulley, in that he shot Cecil Gulley in the back in violation of Paragraph 12-4b1, Chapter 38, Illinois Revised Statutes."

Count XIV of the indictments charged:

"That on January 23, 1982, in Saline County, David L. Rollins committed the offense of AGGRAVATED BATTERY in that the said defendant, in committing a Battery, in violation of Illinois Revised Statutes, Chapter 38, Section 12-3, without legal justification, knowingly caused great bodily harm to Cecil Gulley in that he shot Cecil Gulley in the back with a .38 caliber pistol in violation of Paragraph 12-4a, Chapter 38, Illinois Revised Statutes."

• 1-3 An essential element of a conviction for armed violence is the commission of the underlying felony while armed. (People v. Frias (1983), 99 Ill.2d 193, 457 N.E.2d 1233.) The requirement of section 33A-2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 33A-2) that there be the commission of a felony while armed with a dangerous weapon contemplates the commission of a predicate offense which is a felony without enhancement by the presence of a weapon. (People v. Haron (1981), 85 Ill.2d 261, 422 N.E.2d 627.) Before one may be convicted of armed violence based upon the predicate felony, the elements of that felony must be established, and it must be proved that the felony was committed while armed. People v. Frias (1983), 99 Ill.2d 193, 457 N.E.2d 1233.

• 4 Each count of the indictment in question charging defendant David Rollins with the aggravated battery of Cecil Gulley alleged that defendant caused great bodily harm to Cecil Gulley by shooting Cecil Gulley in the back without legal justification while armed with a .38-caliber pistol. Count XIII alleged that defendant David Rollins committed aggravated battery in violation of section 12-4(b)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 12-4(b)(1)) that prohibits the commission of a battery while armed with a deadly weapon. Count XIV alleged that defendant committed aggravated battery based on great bodily harm by means of a .38-caliber pistol. The armed violence charge based in part upon count XIV is that defendant was "armed with a dangerous weapon, a .38 caliber pistol." However, we see neither discrepancy nor ...


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