The opinion of the court was delivered by: Justice Rapp
IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT
Appeal from the Circuit Court of Stephenson County.
Honorable Charles R. Hartman, Judge, Presiding.
Following a jury trial, defendant, Ellis Williams, was convicted of the offenses of armed violence based upon possession of a controlled substance (720 ILCS 5/33A--2 (West 1996)); unlawful possession of a weapon by a felon (720 ILCS 5/24--1.1(a) (West 1996)); and unlawful use of a weapon (720 ILCS 5/24--1(a)(9) (West 1996)). The jury found him not guilty of possession of a controlled substance with intent to deliver.
The trial court sentenced him to concurrent terms of 18 years' imprisonment for armed violence and 10 years' imprisonment for unlawful use of a weapon by a felon. No sentence was imposed for the charge of unlawful use of a weapon as it was deemed to be a lesser included offense.
Defendant presents three issues on appeal. First, he argues that the trial court erred when it imposed a sentence for the conviction of the unlawful use of a weapon by a felon, contending that such a separate sentence violates the one-act, one-crime rule. His second ground for appeal focuses on the constitutionality of Public Act 88--680 (Pub. Act 88--680, eff. January 1, 1995) which increased the minimum sentence for armed violence. Last, he alleges that the court erred when it imposed an extended-term sentence for the unlawful use of a weapon by a felon.
On June 11, 1997, a Stephenson County deputy sheriff stopped a motor vehicle because the rear license plate was not properly illuminated. There were five people in the car, two in the front and three in the rear. While the deputy was processing a warning ticket, he noticed that one of the backseat passengers seemed to be very nervous. The man, who was later identified as defendant, Ellis Williams, kept turning around and moving around in his seat.
When the officer asked defendant his name, defendant told him his name was Michael Williams. The officer knew Michael Williams and knew that defendant was not telling the truth. The driver of the car told the deputy he knew defendant as Ellis and the officer checked to see if there were any outstanding warrants for Ellis Williams. When he found that a warrant was outstanding for Ellis Williams, he arrested defendant and took him into custody. In so doing, he noticed the grip of a pistol that had been pushed down between the seat and the backrest behind the place where defendant had been sitting. When the officer pulled the gun out of the seat, he found a clear plastic baggie next to it. The baggie contained nine rocks of cocaine in a quantity of 1.4 grams. At trial, the State introduced two of defendant's prior felony convictions. The defendant offered no witnesses.
THE ONE-ACT, ONE-CRIME RULE
Defendant urges this court to apply the rule of law announced in People v. King, 66 Ill. 2d 551 (1977). In King the supreme court stated:
"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.
The King case was later refined by the supreme court in People v. Rodriguez, 169 Ill. 2d 183 (1996). In Rodriguez, the court in discussing the definition of "act" held that it simply means " 'any overt or outward manifestation which will support a different offense.' " Rodriguez, 169 Ill. 2d at 186, quoting King, 66 Ill. 2d at 566. The supreme court went on to state that a person can be guilty of two offenses when a common act is part of both offenses. Rodriguez, 169 Ill. 2d at 188. The Rodriguez decision held that convictions for both aggravated criminal sexual assault and home invasion are proper where defendant committed multiple acts, despite the interrelationship of those acts.
In the case decided herein, the common act is a felon possessing a gun and drugs simultaneously. There is no separate act. In one instance the gun is combined with possession of a controlled substance to constitute armed violence, and in the other it is combined with the act of a convicted felon status to create a separate offense. We hold that the one-act, one-crime rule does apply to these convictions. Accordingly, the ...