Appeal from the Circuit Court of Kane County, No. 09-CF-418 Honorable T. Jordan Gallagher, Judge, Presiding.
JUSTICE ZENOFF delivered the judgment of the court, with opinion. Justices Schostok and Hudson concurred in the judgment and opinion.
¶ 1 Defendant, Jose L. Cervantes, appeals from an order of the circuit court of Kane County finding him guilty of the offense of armed violence (720 ILCS 5/33A-2(a) (West 2008)) following a trial without a jury. We reverse and remand.
¶ 2 BACKGROUND
¶ 3 On March 9, 2009, a grand jury indicted defendant as follows: count I, armed violence; count II, unlawful possession of a controlled substance with intent to deliver within 1, 000 feet of public housing (720 ILCS 570/407(b)(1) (West 2008)); count III, unlawful possession of a controlled substance with intent to deliver (720 ILCS 570/401(c)(2) (West 2008)); count IV, unlawful possession of a controlled substance (720 ILCS 570/402(c) (West 2008)); count V, unlawful possession of cannabis with intent to deliver (720 ILCS 550/5(d) (West 2008)); and count VI, unlawful possession of cannabis (720 ILCS 550/4(d) (West 2008)). Defendant waived a jury, and the following evidence was adduced at the bench trial.
¶ 4 On February 6, 2009, the police executed a search warrant at the residence located at 308 N. Westgate in Aurora, Illinois. Defendant, the target of the search warrant, was staying in the southwest bedroom of the house. While officers entered the house through a door, other officers broke a window to defendant's bedroom. Some of the glass fell inside the room. Immediately beneath the broken window was a child's plastic twin bed in the shape of a car. The bed was low to the floor, and the officers who entered the bedroom did not observe a gun beneath the bed. Defendant was kneeling on the floor within a foot or two from the bed, rubbing a white substance into the carpet with his left hand. Defendant's right arm was extended toward the bed, palm down, at shoulder level, approximately six inches above the bed. Defendant's hand was "right at the edge of the bed." A small child was on the bed as was some glass from the broken window. Defendant was arrested, and police seized cocaine and marijuana from the bedroom along with baggies, money, and three electronic scales.
¶ 5 Investigator Cottrell Webster collected the evidence from the bedroom, which was described as "small, " approximately 6 feet by 8 feet or 6 feet by 10 feet. When Webster entered the bedroom, defendant was in custody on the floor in front of the bed, where cocaine had been rubbed into the carpet and baggies were found. Webster lifted up the bed with his hand in the middle of the plastic frame (the child was not on the bed at that point). He removed a wooden slat and saw a revolver on the floor under the bed, less than six inches from the front of the bed. Webster testified that the bed was "not heavy at all, " and that it did not have a metal frame. He removed four live rounds from the gun.
¶ 6 The State offered expert testimony that the cocaine and cannabis found in the bedroom were for distribution rather than personal consumption.
¶ 7 Defendant had been a fugitive from warrants since 2003. After his arrest in the Westgate house in February 2009, defendant admitted to police that the contraband found in the bedroom was his. Defendant also admitted selling drugs in order to support himself and his family, claiming that it was necessary. Defendant told police that, because of his fugitive status, he was unable to get a job. Defendant did not testify at trial.
¶ 8 The matter came on for ruling nearly a month following the bench trial,  and the trial court began by discussing the evidence on count III, unlawful possession of a controlled substance with intent to deliver, saying, "I'm going to talk about count [III] first because I think that disposes of a lot." The trial court found that three items of suspected cocaine were placed into one evidence bag and that the laboratory tested only one of those items. The court then said:
"And then the overall weight, even with everything in there, I don't believe is sufficient to show beyond a reasonable doubt that he possessed with the intent to deliver. So I am going to find him not guilty on [count III], which I think makes [count II and count I] fail. So he will be found not guilty on [counts I, II, and III.]
With respect to [count IV], I find him guilty; [count V], I find him guilty; and [count VI], I find him guilty.
[Count V], the possession of cannabis with intent to deliver, I think the evidence was overwhelming that there was sufficient evidence to convict him on that.
Do we need a presentence investigation?"
¶ 9 The next 40 lines of transcript are a discussion about setting a date for sentencing.
¶ 10 The prosecutor then said: "Judge, if I could just, if I could clarify your ruling." The prosecutor pointed out that the armed violence charged in count I of the indictment was predicated on the charge of unlawful possession of a controlled substance in count IV, on which count the court had found defendant guilty. A lengthy discussion ensued between the court and the prosecutor over which count charged what. During the discussion, the following occurred:
"[Assistant State's Attorney]: The felony that we are alleging he committed in combination in [count I] would be the unlawful possession of a controlled substance in violation of 402(c) which is what is alleged in [count IV].
[The Court]: Okay. I am going to have to go back and look at that, okay, because I was reading that wrong."
Another scheduling discussion took place, and then the court said: "I want to reread those cases. I had resolved it on another line of thinking, and I was wrong. Thank you for pointing that out. And I just need to read those other cases on armed violence one more time." The court suggested continuing the matter for a week, saying, "I can rule on that count [I]."
¶ 11 The written order entered after the hearing had originally been drafted to find defendant not guilty on counts I, II, and III. Count I was then scratched out. Paragraph five of the order provided that the case was continued for ruling on count I and for setting a sentencing date. On the date set for ruling, the trial court stated, "This is here for my ruling on count [I] of the indictment following a bench trial. Before I get to that, I just want the record to be clear as to some other findings that I've made." The court then reiterated its previous ruling and the reasons therefor with respect to the charge of possession of a controlled substance with intent to deliver and then said:
"With respect to the armed violence [charge], I was under the mistaken belief, and had not read the indictment close enough, and I thought the predicate felony was the possession with intent, and in fact it wasn't, and [the assistant State's Attorney] was kind enough to point out to me that it was the underlying straight possession which I did find [defendant] guilty of. So I went back and read the armed violence cases."
The court then analyzed the evidence with respect to whether the revolver under the bed had been immediately accessible to defendant. The court rejected as irrelevant the State's argument that defendant owned the gun and said that the issue was whether defendant had immediate access to the gun. The court stated that the cases cited by the parties were not helpful. The court summarized Webster's testimony and found as follows:
"I don't believe [defendant] was reaching for the gun, but that's not the issue. The issue is was it immediately accessible had he wanted to. And the testimony of [Webster] was to get to the gun, you couldn't just reach under the bed. You had to lift the bed up. However, I don't think it was very difficult to lift the bed up, according to [Webster's] testimony, and all [defendant] had to do is lift it up and he could have the gun. The gun was there, he knew the gun was there. Therefore, I am going to find that it was immediately accessible and find [defendant] guilty of [armed violence]."
¶ 12 Defendant filed a written posttrial motion, in which he did not raise a double jeopardy issue based on the court's initial finding of not guilty of armed violence. However, at the hearing on the posttrial motion, defense counsel raised the issue orally. The court continued the matter to give the State time to respond and to obtain the transcript of the original ruling after trial. Ultimately, the court denied the posttrial motion, finding that it had "corrected" the mistake after the State brought the error to the court's attention. The court denied ...