APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. No. 92 CR 25581. THE HONORABLE MATTHEW MORAN, JUDGE PRESIDING.
Released for Publication March 21, 1995.
Presiding Justice Cousins, Jr., delivered the opinion of the court: McNULTY and T. O'brien, JJ., concur.
The opinion of the court was delivered by: Cousins
PRESIDING JUSTICE COUSINS, JR. delivered the opinion of the court:
Davell Jackson (defendant) was charged with unlawful use of weapons and ammunition by a felon, in violation of section 24-1.1 of the Criminal Code of 1961. (720 ILCS 5/24-1.1 (West 1992).) Prior to jury selection, defendant filed a motion to bar introduction of his felony conviction to the jury, based on section 111-3(c) of the Code of Criminal Procedure of 1963. (725 ILCS 5/111-3(c) (West 1992).) The State argued that section 111-3(c) did not apply because the felony conviction was an essential element to convict under section 24-1.1 and not a mere sentence enhancement where section 111-3(c) would be applicable. Following arguments, the court granted defendant's motion upon the condition that defendant stipulate the prior conviction to the trial judge only, outside of the presence of the jury. The State brings an interlocutory appeal of the order granting defendant's motion.
On October 23, 1992, defendant was arrested for unlawful possession of a weapon. On November 6, 1992, defendant was charged by information under section 24-1.1 for unlawful use of weapons and ammunition by a felon. (720 ILCS 5/24-1.1 (West 1992).) The information alleged that Davell Jackson:
"knowingly possessed on and about his person, a firearm and ammunition, after having been convicted of the felony offense of possession of a stolen vehicle, in violation of Chapter 38, Section 24-1.1(A) of the Illinois Revised Statutes 1989 as amended."
Defendant filed a motion to bar introduction of his felony conviction to the jury. The motion was based on section 111-3(c) of the Code of Criminal Procedure, an amendment to section 111-3 effective July 1, 1990. (725 ILCS 5/111-3(c) (West 1992).) Section 111-3(c) states:
"When the State seeks an enhanced sentence because of a prior conviction, the charge shall also state the intention to seek an enhanced sentence and shall state such prior conviction so as to give notice to the defendant. However, the fact of such prior conviction and the State's intention to seek an enhanced sentence are not elements of the offense and may not be disclosed to the jury during trial unless otherwise permitted by issues properly raised during such trial. For the purposes of this Section, 'enhanced sentence' means a sentence which is increased by a prior conviction from one classification of offense to another higher level classification of offense * * *." 725 ILCS 5/111-3(c) (West 1992).
The trial court granted the motion. The court held that section 111-3(c) applied to section 24-1.1 as an enhanced sentence to section 24-1 (720 ILCS 5/24-1 (West 1992)), governing unlawful use of weapons by nonfelons. The trial court directed that section 111-3(c) required that the phrase "after having been convicted of a felony offense of possession of a stolen vehicle" could not be presented to the jury. Instead, the court allowed the defendant to stipulate outside the presence of the jury that he had been convicted of a felony offense. The court relied on People v. Bowman (1991), 221 Ill. App. 3d 663, 583 N.E.2d 114, 164 Ill. Dec. 560, which held that section 111-3(c) applied to trials where the defendant was accused of driving while license revoked (DWR) and faced an enhanced sentenced for a previous DWR conviction.
The prosecution filed a certificate of impairment to appeal the trial court's ruling. Thereafter, the court made the following statement:
"THE COURT: The Court takes the position that there was no suppression of evidence by the Court, there's been no impairment of the prosecution of the charge of unlawful possession of a weapon on or about his person in a vehicle, which is the charge pending before the jury. This ...