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04/15/94 PEOPLE STATE ILLINOIS v. CHESTER FISHER

April 15, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
CHESTER FISHER, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Pope County. No. 90-CF-10. Honorable Rodney C. Clutts, Judge Presiding.

Petition for Leave to Appeal Denied October 6, 1994.

Rarick, Welch, Chapman

The opinion of the court was delivered by: Rarick

JUSTICE RARICK delivered the opinion of the Court:

The State appeals from the order of the circuit court which dismissed a charge of armed violence against defendant, Chester Fisher. Defendant was tried by a jury in the circuit court of Pope County on charges of armed violence, aggravated battery, and attempted first-degree murder. The jury found defendant guilty of aggravated battery. A mistrial was declared as to the armed violence and attempted first-degree murder charges. The court subsequently dismissed the charge of armed violence on the basis that the jury's verdict, which found defendant guilty of aggravated battery, an included offense of armed violence, was tantamount to a not guilty finding on the armed violence charge. The State appeals the dismissal of the armed violence charge. The attempt charge was not dismissed and is not an issue in this appeal.

Before addressing the State's argument that the court erred in dismissing the armed violence charge, there is a preliminary matter we must address. Defendant argues this court is without jurisdiction to hear the State's appeal because the State failed to file a motion asking the trial court to reconsider its decision. Defendant relies on People v. Macke (1992), 224 Ill. App. 3d 815, 587 N.E.2d 1113, 167 Ill. Dec. 498, in which this court held that a defendant's failure to file a motion to reduce his sentence as required by section 5-8-1(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005-8-1(c)) precluded appeal of the sentence. Defendant argues that because the State in the instant case did not file a motion to have the Judge reconsider its decision, the State did not comply with the dictates of Macke and this court is without jurisdiction to hear the State's appeal. We find no merit to defendant's argument. In the recent case of People v. Lewis (March 24, 1994), No. 74739, Ill. 2d , N.E.2d , our supreme court held that the legislature in enacting section 5-8-1(c) did not require, rather than merely permit, a motion to reduce the sentence of a defendant wishing to appeal the severity of that sentence. The Lewis decision effectively overruled the portions of the Macke decision on which defendant in this cause relies.

We now turn to the substance of the State's appeal. Evidence was presented at trial that the victim, Michael Bates, had a 7 1/2-year romantic involvement with Laura Oshe. After Oshe broke up with Bates, she dated defendant. On April 14, 1990, Bates punched defendant in the nose causing defendant's nose to bleed. Defendant returned home and placed a shotgun in his pickup truck. While driving around the Golconda area, defendant noticed Oshe and Bates by the side of the road and pulled behind their vehicles, and Bates, while carrying a tire iron in each hand, approached defendant. Defendant, who was now outside of his truck, fired the shotgun twice. Bates received numerous wounds to his backside.

Without objection by either party, the jury received the following instructions which are pertinent to this appeal:

"The defendant is charged with the offense of armed violence. The defendant has pleaded not guilty. Under the law, a person charged with armed violence may be found not guilty of armed violence and not guilty of aggravated battery, or may be found guilty of armed violence or guilty of aggravated battery.

You are to decide based upon the evidence and the law in this case whether to return a verdict of not guilty of armed violence and not guilty of aggravated battery, a verdict of guilty of armed violence, or a verdict of guilty of aggravated battery. * * *" Illinois Pattern Jury Instructions, Criminal, No. 2.01R (2d ed. Supp. 1989).

"When you retire to the jury room you first will elect one of your members as your foreperson. He or she will preside during your deliberations on your verdict.

Your agreement on a verdict must be unanimous. Your verdict must be in writing and signed by all of you, including the foreperson.

The defendant is charged with the offense of armed violence. Under the law, a person charged with armed violence may be found not guilty of armed violence and not guilty of aggravated battery, or may be found guilty of armed violence or guilty of aggravated battery.

You are to decide based upon the evidence and the law in this case whether to return a verdict of not guilty of armed violence and not guilty of aggravated battery, a verdict of guilty of armed violence, or a verdict of guilty of aggravated battery.

Accordingly, you will be provided with three verdict forms pertaining to the charge of armed violence: 'not guilty of armed violence and not guilty of aggravated battery,' 'guilty of armed violence,' and 'guilty of aggravated battery.'

From the three verdict forms, you should select the one verdict form that reflects your verdict and sign it as I have stated. Do not write at all on the other two verdict forms. Sign only one of the verdict forms.

If you find the State has proved the defendant guilty of both armed violence and aggravated battery, you should select the verdict form finding the defendant guilty of armed violence and sign it as I have stated. Under these circumstances, do not sign the verdict form finding the defendant guilty of aggravated ...


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