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01/18/96 PEOPLE STATE ILLINOIS v. EDWARD RODRIGUEZ

January 18, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT AND CROSS-APPELLEE,
v.
EDWARD RODRIGUEZ, APPELLEE AND CROSS-APPELLANT.



Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Loretta Hall Morgan, Judge, presiding.

The Honorable Justice Freeman delivered the opinion of the court: Justice Harrison took no part in the consideration or decision of this case. Justice Heiple, specially concurring:

The opinion of the court was delivered by: Freeman

The Honorable Justice FREEMAN delivered the opinion of the court:

Defendant, Edward Rodriguez, was tried in the circuit court of Cook County on eight counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1991, ch. 38, pars. 12-14(a)(1), (a)(4)), one count of home invasion (Ill. Rev. Stat. 1991, ch. 38, par. 12-11(a)(1)), and two counts of intimidation (Ill. Rev. Stat. 1991, ch. 38, par. 12-6(a)(1)). The record shows that defendant entered the bedroom of the victim, a 13-year-old girl, and sexually assaulted her while brandishing a handgun and threatening her several times.

At the close of the evidence, the jury returned three general verdicts of guilty, one for each offense. The trial court sentenced defendant to consecutive 35-year prison terms on the aggravated criminal sexual assault and home invasion convictions (see Ill. Rev. Stat. 1991, ch. 38, par. 1005-8-4(a)), and a five-year prison term on the intimidation conviction.

The appellate court upheld defendant's aggravated criminal sexual assault and intimidation convictions. However, the court vacated the home invasion conviction based on the doctrine of People v. King (1977), 66 Ill. 2d 551, 6 Ill. Dec. 891, 363 N.E.2d 838. (267 Ill. App. 3d 942.) We allowed the State's petition for leave to appeal. (145 Ill. 2d R. 315(a).) Defendant cross-appeals. We reverse the appellate court's vacation of the home invasion conviction, and otherwise affirm the appellate court.

ARGUMENT(S)

State's Appeal

The State contends that the appellate court misapplied the King doctrine to the present case. In King, this court held:

"Prejudice results to the defendant only in those instances where more than one offense is carved from the same physical act. Prejudice, with regard to multiple acts, exists only when the defendant is convicted of more than one offense, some of which are, by definition, lesser included offenses. Multiple convictions and concurrent sentences should be permitted in all other cases where a defendant has committed several acts, despite the interrelationship of those acts. 'Act,' when used in this sense, is intended to mean any overt or outward manifestation which will support a different offense. We hold, therefore, that when more than one offense arises from a series of incidental or closely related acts and the offenses are not, by definition, lesser included offenses, convictions with concurrent sentences can be entered." King, 66 Ill. 2d at 566.

Under King, a court first determines whether a defendant's conduct consisted of separate acts or a single physical act. Multiple convictions are improper if they are based on precisely the same physical act. (See People v. Segara (1988), 126 Ill. 2d 70, 76-77, 127 Ill. Dec. 720, 533 N.E.2d 802; People v. Szabo (1983), 94 Ill. 2d 327, 350, 68 Ill. Dec. 935, 447 N.E.2d 193.) If the court determines that the defendant committed multiple acts, the court then goes on to determine whether any of the offenses are lesser included offenses. (See, e.g., People v. Shum (1987), 117 Ill. 2d 317, 363-64, 111 Ill. Dec. 546, 512 N.E.2d 1183; People v. Manning (1978), 71 Ill. 2d 132, 133, 15 Ill. Dec. 765, 374 N.E.2d 200.) If so, then, under King, multiple convictions are improper; if not, then multiple convictions may be entered. We note-and decline-the State's suggestion that this court abandon the King doctrine and return to its predecessor. See King, 66 Ill. 2d at 559-66.

We also note that the King doctrine applies to the present case. King speaks of multiple convictions and concurrent sentences. The sentencing provision at issue in King, section 5-8-4(a) of the Unified Code of Corrections, read in pertinent part:

"'The court shall not impose consecutive sentences for offenses which are committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective.' (Ill. Rev. Stat. 1973, ch. 38, par. 1005-8-4(a).)" King, 66 Ill. 2d at 565.

However, subsequent to King, the legislature has amended this provision more than once. The version that applies to ...


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