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12/19/96 PEOPLE STATE ILLINOIS v. KELVIN LEWIS

December 19, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
KELVIN LEWIS, APPELLEE.



The Honorable Justice McMORROW delivered the opinion of the court. Justice Miller, dissenting. Justice Nickels joins in this dissent.

The opinion of the court was delivered by: Mcmorrow

The Honorable Justice McMORROW delivered the opinion of the court:

At issue in this case is whether the statutory penalties for armed robbery (720 ILCS 5/18-2 (West 1994)) and armed violence predicated on robbery committed with a category I weapon (720 ILCS 5/33A-1 (West 1994)) are proportionate penalties pursuant to article I, section 11, of the 1970 Illinois Constitution. The circuit court, in a ruling dismissing a count of armed violence predicated on robbery committed with a category I weapon, concluded that the penalties are unconstitutionally disproportionate. The State appealed directly to this court. 134 Ill. 2d R. 603. *fn1 For the reasons which follow, we affirm the decision of the circuit court.

Background

Defendant, Kelvin Lewis, was charged by information in the circuit court of Cook County with one count of robbery (720 ILCS 5/18-1 (West 1994)), one count of armed violence predicated on robbery committed with a category I weapon (720 ILCS 5/33A-1 (West 1994)), and one count of armed robbery (720 ILCS 5/18-2 (West 1994)). The charging instrument alleges that on June 24, 1995, defendant displayed a handgun and took from the victim, by threat of imminent use of force, a radar detector and a compact disc player. All three counts in the information are based on this single incident.

On November 28, 1995, defendant filed a pretrial motion to dismiss the armed violence count of the information. In his motion, defendant contended that he could not be charged with armed violence predicated on robbery committed with a category I weapon, such as a handgun, because the penalty for that offense violates the proportionate penalties clause of the Illinois Constitution. That clause provides:

"All penalties shall be determined *** according to the seriousness of the offense *** ." Ill. Const. 1970, art. I, § 11.

The circuit court agreed. The circuit court noted that the substantive elements of armed violence, where predicated on robbery committed with a category I weapon, and armed robbery, are identical. Yet, armed violence committed with a category I weapon carries a mandatory minimum sentence of 15 years, while armed robbery carries only a 6-year mandatory minimum sentence. Relying on this court's decision in People v. Christy, 139 Ill. 2d 172, 151 Ill. Dec. 315, 564 N.E.2d 770 (1990), the circuit court concluded that the penalties for the two offenses are unconstitutionally disproportionate and, accordingly, dismissed the armed violence count. Subsequently, the State moved to have the case removed from the call of the circuit court's docket pending the outcome of this appeal. The circuit court granted the motion and the State's appeal followed.

Analysis

We begin our analysis with the pertinent statutes. The armed violence statute provides:

" § 33A-1. Definitions.

(a) 'Armed with a dangerous weapon'. A person is considered armed with a dangerous weapon for purposes of this Article, when he or she carries on or about his or her person or is otherwise armed with a Category I, Category II, or Category III weapon.

(b) A Category I weapon is a handgun *** ." 720 ILCS 5/33A-1 (West 1994).

" § 33A-2. Armed violence-Elements of the offense. A person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois Law." 720 ILCS 5/33A-2 (West 1994).

" § 33A-3. Sentence.

(a) Violation of Section 33A-2 with a Category I weapon is a Class X felony for which the defendant shall be sentenced to a minimum term of imprisonment of ...


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