text:
    (No. 53152.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. DOUGLAS DEES, Appellee.

      Opinion filed June 4, 1981.

      Tyrone C. Fahner and William J. Scott, Attorneys General, of Springfield, and Nancy Owen and Paul C. Komada, State’s Attorneys, of Charleston (Donald B. Mackay, Melbourne A. Noel, Jr., and Maureen Cain, Assistant Attorneys General, of Chicago, and Gary J. Anderson and Karen L. Boyaris, of the State’s Attorneys Appellate Service Commission, of Springfield, of counsel), for the People.
    Daniel D. Yuhas, Deputy Defender, of the Office of the State Appellate Defender, of Springfield (Don L. Johnson, Assistant Defender, of counsel), for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

On February 15, 1979, the defendant, Douglas Dees, was arrested without a warrant, and an information was filed charging him with the misdemeanor offenses of resisting a police officer and escape. On the same day a warrant was issued by the Department of Corrections reciting that defendant had violated the conditions of his parole from an earlier conviction and sentence of imprisonment, and commanding his apprehension and return to confinement. On February 23 he was served with written notice of the alleged parole violations and waived a preliminary hearing on those charges. He revoked that waiver on February 28. On March 1 he was brought before a judge of the circuit court of Coles County for arraignment on the criminal charges and furnished a copy of the information. Defendant declined the appointment of counsel and pleaded not guilty. On March 12 he moved for a discharge from custody because he had not been given a preliminary hearing during the 14-day period between his arrest and arraignment. That motion was denied on March 19. Defendant then requested a lawyer, and counsel was appointed.

A hearing on the charges of parole violation was held on March 20 by the Department of Corrections, and probable cause was found. Defense counsel subsequently renewed defendant’s original motion to dismiss the criminal charges, and on April 25 the circuit court found that the 14-day delay between arrest and arraignment violated the statutory provisions concerning preliminary examination (Ill. Rev. Stat. 1979, ch. 38, par. 109 — 1(a)) and denied defendant due process. The criminal charges were dismissed with prejudice. A divided appellate court affirmed (81 Ill. App. 3d 35), and we granted the State’s petition for leave to appeal.

The defendant alleges, and the trial and appellate courts found, that defendant was prejudiced by the 14-day delay in bringing him before a judicial officer. The State argues that since defendant would have remained in jail on the parole-violation charges even if a judge had found no probable cause for the criminal charges, defendant suffered no actual and substantial prejudice from the delay in his court appearance. The State also asserts that even if the delay is found to be unreasonable and the cause of substantial prejudice to defendant, the dismissal of the charges without leave to refile was inappropriate.

Our Code of Criminal Procedure of 1963 provisions relating to preliminary examinations state in part:

“Sec. 109 — 1. Person Arrested.
(a) A person arrested without a warrant shall be taken without unnecessary delay before the nearest and most accessible judge in that county, and a charge shall be filed. A person arrested on a warrant shall be taken without unnecessary delay before the judge who issued the warrant or if he is absent or unable to act before the nearest or most accessible judge in the same county.
(b) The judge shall:
(1) Inform the defendant of the charge against him and shall provide him with a copy of the charge.
(2) Advise the defendant of his right to counsel and if indigent shall appoint a public defender or licensed attorney at law of this State to represent him in accordance with the provisions of Section 113 — 3 of this Code.
(3) Hold a preliminary hearing in those cases where the judge is without jurisdiction to try the offense; and
(4) Admit the defendant to bail in accordance with the provisions of Article 110 of this Code.” Ill.
Rev. Stat. 1979, ch. 38, par. 109-1.

The right of a defendant arrested without a warrant to at least an informal, nonadversary type of probable cause hearing before a judicial officer as a prerequisite to extended restraint of liberty is secured by the fourth amendment to the Federal Constitution. (Gerstein v. Pugh (1975), 420 U.S. 103, 114, 43 L. Ed. 2d 54, 65, 95 S. Ct. 854, 863.) Our own statutory provisions direct that such defendants be taken before a judge without unnecessary delay, and prescribe a somewhat more formal preliminary examination with a right to counsel. The precise question for our resolution is whether the 14-day interval between defendant’s arrest and his court appearance justifies permanent dismissal of the charges where defendant has not established prejudice resulting from that delay.

The problem of delay in taking an accused person before a judicial officer is not a new one. (See Ill. Ann. Stat. ch. 38, art. 109, Committee Comments (Smith-Hurd 1970).) Delay alone, however, has not heretofore been considered sufficient cause to penalize the prosecution to the extent of excluding confessions obtained during the period between arrest and appearance before a judge (see Ill. Ann. Stat. ch. 38, art. 109, Committee Comments (Smith-Hurd 1970); People v. Howell (1975), 60 Ill. 2d 117, 122; People v. Stone (1970), 45 Ill. 2d 100) or to dismiss the case (People v. Lawson (1977), 67 Ill. 2d 449). Rather, this court, in the confession cases, has considered whether the evidence established that a confession secured during that period was voluntarily or involuntarily given. Only if that evidence supported a finding of involuntariness was the confession excluded.

In Howell and People v. Hendrix (1973), 54 Ill. 2d 165, we noted that the Illinois constitutional provision on preliminary hearings does not provide a grant of immunity from prosecution as a sanction for its violation. Too, the United States Supreme Court in Gerstein noted that an illegal arrest or detention does not void a subsequent conviction, stating, “Although a suspect who is presently detained may challenge the probable cause for that confinement, a conviction will not be vacated on the ground that the defendant was detained pending trial without a determination of probable cause.” (420 U.S. 103, 119, 43 L. Ed. 2d 54, 68, 95 S. Ct. 854, 866.) Similarly, in Lawson this court considered preindictment delay of nearly a year insufficient, without proof of actual and substantial prejudice, to justify dismissal of the charges. Instead, the court established a balancing process to weigh the competing interests of the defendant and the State. It was there said:

“Where there has been a delay between an alleged crime and indictment or arrest or accusation, the defendant must come forward with a clear showing of actual and substantial prejudice. *** If the accused satisfies the trial court that he or she has been substantially prejudiced by the delay, then the burden shifts to the State to show the reasonableness, if not the necessity, of the delay.
If this two-step process ascertains both substantial prejudice and reasonableness of a delay, then the court must make a determination based upon a balancing of the interests of the defendant and the public. Factors the court should consider, among others, are the length of the delay and the seriousness of the crime.” (Emphasis in original.) People v. Lawson (1977), 67 Ill. 2d 449, 459.

While Lawson involved a claimed constitutional due process violation arising from lengthy delay between commission of the crime and indictment, the prejudice alleged to have resulted is identical to that argued to have occurred here — hindering preparation of a defense to the charges. Concededly, a significant difference between Lawson and this case exists in that in Lawson the defendant was at liberty during the complained-of period. But as we later note, it was not shown that defendant’s incarceration here would have been shortened had he been taken before a judge without any delay. Given that fact, permanent dismissal of the charges in this case does not seem compatible with the rationale underlying Gerstein, Lawson, Howell, or Hendrix.

Although there is no clear indication in this record or in his memorandum opinion of the reason for the trial judge’s belief that defendant had been actually and substantially prejudiced, he and the appellate court both appear to have believed the criminal charges which were filed by the State’s Attorney and the parole violations alleged by the Department of Corrections were “identical,” for both courts emphasized that aspect. In fact, both were not identical, nor is it entirely clear that they were even related. The notice of parole-violation charges served upon defendant consisted of a printed form upon which the specific information was typed. The space on the face of the form for a statement of the charges contained the resisting and escape charges followed by the printed words: “(For further allegations, see reverse side)”. On the reverse side were two additional paragraphs alleging unlawful possession of a firearm and possession of stolen property. The transcript of the March 19 hearing at which defendant’s pro se motion for discharge was denied contains comments by the trial judge clearly indicating that he observed the additional charges on the reverse side of the document while examining it. At the time of the hearing a month later on the renewed motion for discharge, however, the trial judge apparently overlooked or did not recall the additional charges, for his memorandum opinion filed two months later indicates the criminal charges and allegations of parole violations to be “identical.” This error was repeated in the appellate court, apparently because in making up the record on appeal only the face of the notice was copied. Consequently the record before the appellate court omitted the additional allegations regarding stolen property and a firearm. The record has been supplemented in this court by adding the original document. The extent to which that clerical error misled the appellate court is, of course, unknown, but it is noteworthy that its opinion emphasizes that prejudice occurred because of the identicality of the charges and that “a swift determination of the criminal charge would have an obvious effect upon the parole violation proceedings.” 81 Ill. App. 3d 35, 40.

The appellate court also considered that the fact defendant was held for 14 days without being advised of the nature of the criminal charges against him constituted a sufficient “hindrance to defense efforts so as to prejudice defendant’s rights.” (81 Ill. App. 3d 35, 40.) This conclusion is unsupported by the record, which contains no suggestion that witnesses have disappeared or become unavailable, or that evidence has disappeared. Too, the appellate court appears to have overlooked the fact that defendant had received notice on February 23, a week before his court appearance, of the parole-violation charges which included the criminal charges.

As noted earlier, and as the State argues, had defendant been taken before a judicial officer the day following his arrest, and the criminal charges been dismissed at that time, he would still have remained in jail pending resolution of the parole-violation charges. (People ex rel. Tucker v. Kotsos (1977), 68 Ill. 2d 88.) Defendant does not actually dispute this, but simply reiterates the appellate court’s suggestion that since the parole violation and criminal charges are “identical” prompt dismissal of the latter “would most likely have had a similar effect on the parole violation proceedings.”

It is probable that in cases in which the criminal charges and the parole-violation charges are identical, a hearing on either which resulted in a finding of no probable cause could dispose of both. In those circumstances it may well be that prejudice results from failure to comply with section 109 — 1. But where the charges are not identical, and it is not established that a disposition of the criminal charges favorable to defendant would similarly affect the parole-violation charges, we believe defendant has the obligation to demonstrate that the delay in his appearance before a judicial officer has in some manner actually prejudiced him. In the absence of such proof of prejudice, the motion to dismiss the criminal charges and discharge defendant should have been denied.

The judgments of the appellate and circuit courts are accordingly reversed and the cause remanded to the circuit court of Coles County for further proceedings consistent herewith.

Reversed and remanded.


source: Caselaw Access Project

author: MR. JUSTICE CLARK MR. JUSTICE SIMON,

license: Public Domain

text:
    (No. 53331.
    (No. 53560.
    (No. 53585.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. WILBUR RHODES, Appellant.-THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. FAIRL VAN ZANT, Appellee. — In re P.W., a Minor, Appellant (The People of the State of Illinois, Appellee).

      Opinion filed June 4, 1981.

      John H. Reid, Deputy Defender, and Jeff M. Plesko and John F. Erbes, Assistant Defenders, of the Office of the State Appellate Defender, of Mt. Vernon, for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield (Melbourne A. Noel, Jr., Thomas E. Holum, and William M. Wippold, Assistant Attorneys General, of Chicago, of counsel), for the People.

      Tyrone C. Fahner and William J. Scott, Attorneys General, of Springfield, and Michael M. Mihm, State’s Attorney, of Peoria (Melbourne A. Noel, Jr., Thomas E. Holum, and William M. Wippold, Assistant Attorneys General, of Chicago, and John X. Breslin and Gerry R. Arnold, of the State’s Attorneys Appellate Service Commission, of Ottawa, of counsel), for the People.
    Robert Agostinelli, Deputy Defender, and Peter A. Carusona, Assistant Defender, of the Office of State Appellate Defender, of Ottawa, for appellee.
    John H. Reid, Deputy Defender, and John F. Erbes, Assistant Defender, of the Office of the State Appellate Defender, of Mt. Vernon, for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield (Melbourne A. Noel, Jr., Thomas E. Holum, and William M. Wippold, Assistant Attorneys General, of counsel), for the People.
   MR. JUSTICE CLARK

delivered the opinion of the court:

These three consolidated cases concern the weight to be given fingerprint evidence found at the scene of three separate burglaries. In cause No. 53331, People v. Rhodes, the defendant, Wilbur Rhodes, was convicted of burglary after a jury trial in the circuit court of St. Clair County. The Appellate Court for the Fifth District, with one justice dissenting, affirmed the conviction (81 Ill. App. 3d 339), and we allowed the defendant leave to appeal. In cause No. 53560, People v. Van Zant, the defendant, Fairl Van Zant, was indicted for burglary, and was subsequently found fit to stand trial. After a jury trial in the circuit court of Peoria County, the defendant was convicted of burglary. The Appellate Court for the Third District unanimously reversed, holding that the defendant was not proved guilty beyond a reasonable doubt (84 Ill. App. 3d 355). We allowed the State leave to appeal. In cause No. 53585, In re P.W., the circuit court of St. Clair County revoked the probation of a minor after finding that the State had proved by a preponderance of the evidence that the minor had committed the offense of burglary. The Appellate Court for the Fifth District, with one justice dissenting, affirmed the circuit court (82 Ill. App. 3d 1199) in a Rule 23 order (73 Ill. 2d R. 23), and we allowed the defendant leave to appeal. We have consolidated the three cases for decision.

In People v. Wilbur Rhodes, the evidence shows that the house of Marshall Gurley of East St. Louis was broken into on February 23, 1977, between the hours of 8 a.m. and 4 p.m. Gurley testified that, when he left the house in the morning, the house was in a fairly neat condition and the doors and windows were closed and locked. The back door was boarded up, because of previous burglaries. When Gurley returned in the afternoon, he noticed the back door was open, and that a back-door window and a porch-door window had been broken. The porch was enclosed, and the porch door was approximately 11 to 12 feet away from the kitchen door. A dresser in the bedroom had been ransacked and some papers, previously contained in a file folder, were lying on the floor. Gurley did not know the defendant and did not give him or anyone else permission to enter the house that day. Gurley also testified that there was broken glass on the floor of the kitchen and on the porch, as well as outside in the back yard.

Officer James Detloff, an officer with the East St. Louis police department qualified in fingerprint analysis, investigated the crime scene. He noticed glass fragments on the kitchen floor, the porch floor, and outside in the back yard. Officer Detloff was able to lift two fingerprints from one of the glass fragments which the officer said he found “six to eight inches” from the kitchen door, the point of entry. Officer Dethloff testified at trial that a comparison of the lifted prints with defendant’s fingerprints on file with the FBI indicated that the prints obtained at the scene of the crime were those of defendant Wilbur Rhodes. The jury returned a verdict of guilty on the charge of burglary. The trial court sentenced the defendant to a term of three to nine years in prison.

In People v. Van Zant, the defendant, Fairl Van Zant, was indicted for burglary. The indictment charged that the defendant committed burglary by breaking into the dwelling of Ralph Graham in the city of Peoria. During a jury trial in the circuit court of Peoria County, the evidence adduced established that a bedroom window had been broken in order to enter the house. Graham testified that a television set, a small pocket calculator, and a camera were missing from his home. Also, Graham testified that a clock radio which had been on a chair in his bedroom in the morning was on the kitchen table upon his return in the afternoon.

Officer Gary Siebenthal, a fingerprint technician with the Peoria police department, testified at trial that he investigated the Graham house for evidence and was able to lift a latent fingerprint from the bottom of the clock radio found in the kitchen. Officer Siebenthal testified that he compared the print found on the clock radio with Graham’s fingerprints. The print did not match any of Graham’s fingerprints. Officer Walt Jatkowski, another fingerprint technician with the Peoria police department, also testified that he compared the latent fingerprint lifted from the clock radio found in the Graham house with the defendant’s fingerprint card. The officer stated that the impressions of the left middle finger on the fingerprint card matched the fingerprint impressed on the clock radio.

The jury subsequently returned a verdict of guilty, which apparently rested solely on the fingerprint evidence, since the offered identification testimony is inadequate to support the conviction. The court sentenced the defendant to a term of four years in the penitentiary. The appellate court reversed., and the State appeals.

The evidence adduced at P.W.’s probation-revocation hearing revealed that the home of Paul Foster of Cahokia was entered sometime between the time Foster left for work in the morning and 1:30 p.m. Mrs. Foster testified that the perpetrator gained entrance by breaking a garage window and kicking in a door leading from the garage to the house. Three dollars were missing from a ceramic egg which was on a dresser in a teenage daughter’s bedroom. The broken garage window was on the side of the garage and toward the rear of the house. Mrs. Foster estimated the window to be approximately 40 feet from the front sidewalk and the same distance from the back of the lot. Adjacent to the garage is a walkway running from the front to the back of the lot. The garage window which was broken was approximately four feet high, and it faces the walkway. One side of the window was glass; the other side was a screen. Mrs. Foster testified that the screen and the window were intact when she left home in the morning. Upon her return the window was broken' and the screen was tom. The walkway was accessible to the public. The record shows the minor lived with his family within a few blocks of the Fosters’ house.

The State called as a witness Officer John Edens, a crime scene technician for the Cahokia police department with considerable training in fingerprint classification and identification. He testified that, when he investigated the scene of the offense for evidence, he found broken glass both inside and outside the garage window. He was able to obtain a right thumb print which, in his opinion, corresponded to the minor’s thumbprint on record with the Cahokia police department. The thumbprint was lifted from a shard of glass lying on the ground outside, 16 to 18 inches from the garage. Officer Edens testified he could not be certain, but he thought the thumbprint was impressed upon the outside right hand corner of the window. He conjectured that the piece of glass had been pulled from the window frame, since it still contained traces of caulking, but he stated that it was not possible to be certain of that. Officer Edens testified further that the print was “fresh,” since it contained oil which the body emits. The officer was unable to say, however, whether the print was impressed the day of the burglary. The parties entered into a stipulation that the thumbprint taken from the shard of glass belonged to the minor, and that there was an unbroken chain of custody regarding the State’s possession of the arrest card which contained the thumbprint. The court denied a motion by the minor for a directed judgment. The minor declined to present any evidence. The trial court then found that the State had proved the offense of burglary by a preponderance of the evidence and that the minor had thereby violated his probation. The court subsequently committed the minor to the Department of Corrections until he reached the age of 21 or until he is fit to return to society.

The issue raised in all three cases is whether the fingerprint evidence introduced in each case is sufficient to establish burglary. The evidence in each case is concededly circumstantial. “Circumstantial evidence is the proof of certain facts and circumstances in a given case from which the jury may infer other connected facts which usually and reasonably follow according to the common experience of mankind.” (Devine v. Delano (1916), 272 Ill. 166, 179-80; 29 Am. Jur. 2d Evidence sec. 264 (1967).) Circumstantial evidence is generally sufficient to support a conviction if it is inconsistent with any reasonable hypothesis of innocence, but the trier of fact need not search out all possible explanations consistent with innocence and raise them to a level of reasonable doubt. (People v. Hancock (1978), 65 Ill. App. 3d 694, 698.) Fingerprint evidence is circumstantial evidence which attempts to connect the defendant to the offense alleged. (People v. Malmenato (1958), 14 Ill. 2d 52, 62; People v. King (1980), 88 Ill. App. 3d 548, 552.) In order to sustain a conviction solely on fingerprint evidence, fingerprints corresponding to the fingerprints of the defendant must have been found in the immediate vicinity of the crime under such circumstances as to establish beyond a reasonable doubt that the fingerprints were impressed at the time the crime was committed. People v. Taylor (1965), 32 Ill. 2d 165, 168; People v. Malmenato (1958), 14 Ill. 2d 52, 62;People v. Reno (1975), 32 Ill. App. 3d 754, 758.

With regard to cause No. 53585, In re P.W., the case of State v. Hanna (1969), Or. App. 110, 459 P.2d 564, is instructive. United States currency was taken from a dwelling after entry was gained through a broken bedroom window. One piece of glass from the window was found leaning against a bush, as if it had been placed there. A fresh fingerprint, later identified as one of the defendant’s, was found on the piece of glass. The Oregon Court of Appeals decided that sufficient circumstantial evidence existed to establish the elements of burglary, including entry of a dwelling. The defendant’s conviction was affirmed.

In In re P.W., the minor’s fresh thumbprint was found on a glass fragment with caulking on it. It is readily infer-able that the print was impressed while the glass was being lifted out of the window, so the burglar could enter without being cut. In such a circumstance the right thumb would be used to lift the glass out of the window. It is not reasonable to hypothesize that the minor would casually walk past the window and impress a thumbprint on the right corner of the window. Therefore, “the unexplained presence of the [minor’s print] is not consistent with any reasonable hypothesis of innocence.” (People v. Taylor (1965), 32 Ill. 2d 165, 168. Accord, People v. King (1980), 88 Ill. App. 3d 548; Lawless v. State (1968), 3 Md. App. 652, 241 A.2d 155; Ingram v. Commonwealth (1936), 265 Ky. 323, 96 S.W.2d 1017.) In a revocation-of-probation proceeding, the burden of proof on the State is to establish a violation of probation by a preponderance of the evidence. (Ill. Rev. Stat. 1977, ch. 37, pars. 704 — 6, 705 — 3(5); In re Thompson (1980), 79 Ill. 2d 262, 267.) The circumstances of this case, especially the fact that the minor’s thumbprint was fresh, indicating that it was more probably left at the time the offense was committed rather than at some other time, satisfies this burden. We therefore affirm the judgment of the appellate court.

Likewise, in cause No. 53331, People v. Rhodes, the evidence adduced at trial excludes any reasonable hypothesis of innocence. When Gurley left for work in the morning, no windows in his house were broken. Upon his return, the window of the kitchen door, the point of illegal entry, was broken and defendant’s fingerprint was found on a glass fragment. The kitchen door was not accessible to the public, and no other prints were found on the glass. Gurley testified he did not know the defendant, the defendant had never been at the house, and Gurley did not give any person permission to enter the house in his absence. The evidence, in its entirety, clearly points to the fact that the fingerprint was left at the time of the commission of a burglary. (Commonwealth v. Cichy (1974), 227 Pa. Super. 480, 323 A.2d 817. Accord, Avent v. Commonwealth (1968), 209 Va. 474, 164 S.E.2d 655; Briones v. State (Tex. Crim. App. 1963), 363 S.W.2d 466.) The defendant’s conviction is therefore affirmed.

Finally, in cause No. 53560, People v. Van Zant, the evidence reveals that the defendant’s fingerprint left on the clock radio could only have been impressed at the time of the commission of the offense. In State v. Dorsett (1973), 18 N.C. App. 318, 196 S.E.2d 591, a factually similar case, the court made a statement that is equally applicable to this case: “The circumstances under which defendant’s fingerprints were found lead inescapably to the conclusion that they could have been impressed only at the time the crime was committed, and this is sufficient to support a conviction.” (18 N.C. App. 318, 319, 196 S.E.2d 591, 592. Accord, Commonwealth v. Wilson (1978), 258 Pa. Super. 231, 392 A.2d 769; Stevenson v. United States (D.C. Cir. 1967), 380 F.2d 590.) The judgment of the appellate court reversing defendant’s conviction is therefore reversed. The judgment of the circuit court is affirmed.

53331 — Judgment affirmed.

53560 Appellate court reversed-, circuit court affirmed.

53585 Judgment affirmed.

MR. JUSTICE SIMON,

concurring in part and dissenting in part:

I concur in the disposition of the appeals in cause Nos. 53331 (Rhodes) and 53585 (P.W.). I disagree, however, with the reversal of the appellate court in cause No. 53560 (Van Zant). I respectfully dissent from the court’s disposition in that case because the State’s evidence against Van Zant did not prove enough.

Aside from an inconclusive eyewitness identification from an 8-year-old, the only evidence against Van Zant was the presence of his fingerprint on a clock radio that had been taken from the victim’s bedroom to his kitchen at the time of the burglary. I agree, as the majority opinion states, that to sustain a conviction on such evidence, the defendant’s fingerprint must have been found under such circumstances as to establish beyond a reasonable doubt that it was impressed when the crime was committed. The evidence here does not satisfy that requirement. It certainly does not prove, as the majority says, that it “could only have been impressed at the time of the offense.”

The State’s evidence did not establish when Van Zant touched the clock radio. It did not show how long the clock radio had been in the victim’s dwelling before the burglary or how the victim came into possession of it. The State did not show whether the clock radio was new or used when the victim got it, how long it had been since the clock radio was last outside the dwelling, or who might have touched it when removed from the dwelling. True, the victim stated that Van Zant was not allowed in his dwelling and so foreclosed the possibility that the fingerprint was put on the clock radio while it was in Graham’s dwelling. But unless the age of the fingerprint could be pinned down, the State should have gone into the history of the object on which the fingerprint was found to eliminate the possibility that it got there innocently. As the well-reasoned opinion of the appellate court suggested, the fingerprint might have been put on the clock radio when it was removed from the victim’s dwelling, for repairs or some other reason, or for that matter even before the present owner received the clock radio.

Where circumstantial evidence is all the proof against a defendant, the State must exclude every reasonable hypothesis of innocence consistent with the facts. (People v. Lewellen (1969), 43 Ill. 2d 74, 78.) The State failed to prove the fingerprint got on the clock radio at the time of the burglary and not at some time before. I regard strict adherence to this requirement as especially important in the case of a fingerprint on an easily moved object like a clock radio. I believe the conviction of Van Zant should stand reversed.


author: MR. JUSTICE SIMON

text:
    (Nos. 53138, 53186 cons.
    GERALD A. SEARS, Appellant, v. CONDE S. SEARS, Appellee. — NANCY DRAFZ, Appellant, v. PARKE, DAVIS & COMPANY, Appellee.

      Opinion filed June 4, 1981.

      J. Scott Bonner, of Neumark & Bonner, and Larry R. Kane, all of Chicago, for appellant.
    Bentley, Du Canto &: Doss, of Chicago (Owen L. Doss, of counsel), for appellee.

      Asher, Goodstein, Pavalon, Gittler, Greenfield & Segal (Eugene I. Pavalon, of counsel), and Cooney & Stenn, all of Chicago, for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith, James R. Pancheri, and Stephen R. Swofford, of counsel), for appellee.
   MR. JUSTICE SIMON

delivered the opinion of the court:

These consolidated cases involve successive post-judgment motions which merely repeat what was set forth or could have been set forth in the first post-judgment motion. The questions they raise are whether the circuit court can allow such a motion and whether filing one extends the time for appeal. These unrelated cases in which we granted leave to appeal involve orders entered by the circuit court of Cook County.

Sears v. Sears (cause No. 53138) is an example of endless matrimonial litigation; but it is unnecessary to relate the entire history of the case. On August 24, 1977, judgment was entered for Conde Sears against Gerald Sears for $13,874.80 for various expenses and arrearages in support. On September 15, Gerald moved to reopen the judgment on the ground that he had justifiably not known of a hearing set for August 23, which had proceeded on Conde’s evidence alone and had been the basis of the next day’s judgment. The motion was denied on December 6. On January 4, 1978, Gerald filed a second motion, making the same argument in more detail. The court heard evidence about who had said what to whom and what Gerald should have known about the August 23 hearing, and on July 12 denied the motion. On August 1, Gerald appealed all the foregoing orders. The appellate court, by order, dismissed Gerald’s appeal as untimely filed (79 Ill. App. 3d 1202).

Drafz v. Parke, Davis & Co. (cause No. 53186) involves a failure-to-warn count of a product liability suit. The defendant moved to strike and dismiss on the ground that in her “amended third amended complaint” plaintiff failed to allege that the defendant manufacturer knew of the danger, as required by Woodill v. Parke Davis & Co. (1978), 58 Ill. App. 3d 349, aff’d (1980), 79 Ill. 2d 26, a case then before the appellate court on a motion for rehearing. On October 12, 1978, the defendant’s motion was allowed, the count was dismissed, and the court made a Rule 304(a) finding, rendering the dismissal enforceable and appealable (73 Ill. 2d R. 304(a)). On November 13 (the 30th day was a Saturday), Nancy Drafz moved to set aside the dismissal on the ground that the defect in the complaint could be easily cured by amendment. The motion was denied on November 15. The judge who had entered these orders then retired. Ms. Drafz filed a second motion on December 11, before a new judge. In her brief, she portrays the motion as in part directed not against the judgment but against new errors in the denial of the first motion; the record, however, demonstrates that the motion was little more than a slightly lengthened redraft of the first. That same day, 26 days after the order denying the first post-judgment motion and four days before her time to appeal expired, the new judge continued the motion, stayed the judgment and the first post-judgment order, and ordered that the time for appeal should not run. On February 13, 1979, the judge set aside the judgment and allowed leave to amend the complaint. On appeal under Supreme Court Rule 308 (73 Ill. 2d R. 308), the appellate court held that the circuit court was without jurisdiction to consider the second motion or set aside the judgment, and reversed, reinstating the judgment for Parke, Davis and Company. 80 Ill. App. 3d 540.

The principles that govern the procedural status presented by these cases were settled in Deckard v. Joiner (1970), 44 Ill. 2d 412. There this court held that a second post-judgment motion, filed more than 30 days after judgment but within 30 days of the denial of the first motion, that only repeats what was in the first motion or raises points that could have been raised the first time does not extend the time for appeal. Deckard also noted that the circuit court could not allow a motion of that type. Anything in Fultz v. Haugan (1971), 49 Ill. 2d 131, 135, which appears to contradict the holding in Deckard or to expand the use of post-judgment motions beyond the time limits announced in Deckard was dictum. The issue decided in Fultz was that a motion for leave to amend a complaint does not extend the time for appeal or the time for filing other motions.

An order denying a post-judgment motion is not itself a judgment, as that word is used in article VI, section 6, of the 1970 Constitution or in Supreme Court Rule 303 (73 Ill. 2d R. 303), and is not an appealable order. But as a practical matter the denial of a timely first post-judgment motion is always reviewable, because on appeal of the judgment the appellant may bring up all related orders entered before the notice of appeal and not previously appealable, including the denial of a post-judgment motion. Sections 50(5), 68.1, and 68.3 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, pars. 50(5), 68.1, 68.3) do not authorize a motion directed against a judgment unless filed within 30 days of the judgment or any extension of time which may be allowed by the trial court (Ill. Rev. Stat. 1979, ch. 110, pars. 68.1, 68.3). Such amotion not only extends the circuit court’s jurisdiction, but also extends the appellate court’s potential jurisdiction, the time within which a notice of appeal may be filed, until 30 days after the motion is denied. (73 Ill. 2d R. 303.) Such a motion, while it may stay the judgment (Ill. Rev. Stat. 1979, ch. 110, pars. 68.1, 68.3), does not disturb the judgment itself or make it merely interlocutory. (See Deckard v. Joiner (1970), 44 Ill. 2d 412, 418.) A motion not filed within 30 days after the judgment (or any extension allowed) is not “timely” within the meaning of that word as used in Rule 303(a); and an untimely motion, or one not directed against the judgment, neither stays the judgment nor extends the time for appeal.

A second post-judgment motion (at least if filed more than 30 days after judgment) is not authorized by either the Civil Practice Act or the rules of this court and must be denied. (Deckard.) There is no provision in the Civil Practice Act or the supreme court rules which permits a losing litigant to return to the trial court indefinitely, hoping for a change of heart or a more sympathetic judge. Permitting successive post-judgment motions would tend to prolong the life of a lawsuit — at a time when the efficient administration of justice demands a reduction in the number of cases pending in trial courts — and would lend itself to harassment. There must be finality, a time when the case in the trial court is really over and the loser must appeal or give up. Successive post-judgment motions interfere with that policy. And justice is not served by permitting the losing party to string out his attack on a judgment over a period of months, one argument at a time, or to make the first motion a rehearsal for the real thing the next month. In the interests of finality, and of certainty and ease of administration in determining when the time for appeal begins to run, we reaffirm the rule of Deckard that successive post-judgment motions are impermissible when the second motion is filed more than 30 days after the judgment or any extension of time allowed for the filing of the post-judgment motion. We hold that the filing of post-judgment motions is limited by the time constraints of the sections of the Civil Practice Act referred to above.

Ms. Drafz’ second motion was improper, and did not extend the time for appeal or renew the circuit court’s jurisdiction. The appellate court correctly reversed the circuit court’s order allowing it. The judgment dismissing the failure-to-warn count of Ms. Drafz’ complaint is beyond review, for she did not timely appeal. The circuit court did not have authority to extend the time for appeal by ordering so; nor did staying the judgment toll the time for appealing it, for judgments are routinely stayed, both by the circuit court and by the appellate court, pending appeal.

Gerald Sears’ warmed-over motion was equally improper. The appellate court correctly dismissed his appeal as untimely.

Gerald argues that by participating in the hearing on his second motion, Conde revested the circuit court with jurisdiction. The revesting doctrine (last applied by this court in Ridgely v. Central Pipe Line Co. (1951), 409 Ill. 46) is, however, inapplicable on the facts of this case. The hearing on Gerald’s motion did not concern the merits of the judgment; the participants did not ignore the judgment and start to retry the case, thereby implying by their conduct their consent to having the judgment set aside. On the contrary, the hearing was about whether the judgment should be set aside; and Conde insisted it should not. Nothing in the proceeding was inconsistent with the judgment. Nothing in Conde’s conduct voluntarily waived her judgment or estopped her to assert it. The old judgment was never touched, and no new one was entered. The hearing on Gerald’s last motion did not render the order denying that motion appealable.

The judgments of the appellate court are affirmed.

Judgments affirmed.


author: MR. CHIEF JUSTICE GOLDENHERSH

text:
    (No. 53472.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. COLIE W. HARON et al., Appellees.

      Opinion filed. June 4, 1981.

    — Rehearing denied July 6, 1981.

      Tyrone C. Fahner, Attorney General, of Springfield, and John Clemons and William G. Schwartz, State’s Attorneys, of Murphysboro (Melbourne A. Noel, Jr., Assistant Attorney General, of Chicago, and Martin N. Ashley and Stephen E. Norris, of the State’s Attorneys Appellate Service Commission, of Mt. Vernon, of counsel), for the People.
    John H. Reid, Deputy Defender, and Randy E. Blue, Assistant Defender, of the Office of the State Appellate Defender, of Mt. Vernon, for appellees.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

In the circuit court of Jackson County, a four-count information, as amended, charged defendant Colie W. Harón with one count of armed violence, two counts of aggravated battery, and one count of unlawful use of weapons. In a separate proceeding, also in the circuit court of Jackson County, defendant Robert G. Kehm was charged by information with one count of illegal delivery of cannabis and one count of armed violence. Each defendant moved to dismiss the armed-violence count on the ground that section 33A — 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2) was unconstitutional. Sua sponte the circuit court consolidated the cases as to the constitutional issues raised by the motions, declared article 33A of the Criminal Code of 1961 unconstitutional, and dismissed the armed-violence charges. The People appealed directly to this court. 73 Ill. 2d R. 603.

The dismissed counts charged that defendant Harón, “while armed with a dangerous weapon, namely a pistol, performed acts prohibited by Chapter 38, Section 12 — 4(b)(1), Illinois Revised Statutes, in that he committed the felony offense of aggravated battery by causing great bodily harm to Michael Banks and Tony Carter ***,’’ and that defendant Kehm “while armed with a dangerous weapon, namely a .38 caliber derringer, committed the felony offense of Illegal Delivery of more than five hundred (500) grams of a substance containing cannabis by knowingly and unlawfully delivering more than five hundred (500) grams of a substance containing cannabis to Marc Oliva and James Temple ***.”

Article 33A of the Criminal Code of 1961 provides:

“Sec. 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 carries on or about his person or is otherwise armed with a category I or category II weapon, (b) A category I weapon is a pistol, revolver, rifle, shotgun, spring gun, or any other firearm, sawed-off shotgun, a stun gun or taser as defined in paragraph (a) of Section 24 — 1 of this Code, knife with a blade of at least 3 inches in length, dagger, dirk, switchblade knife, stiletto, or any other deadly or dangerous weapon or instrument of like character, (c) A category II weapon is a bludgeon, blackjack, slungshot, sand-bag, sandclub, metal knuckles, billy or other dangerous weapon of like character.”
“Sec. 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.”
“Sec. 33A — 3. Sentence, (a) Violation of Section 33A — 2 with a Category I weapon is a Class X felony. (b) Violation of Section 33A — 2 with a Category II weapon is a Class 2 felony or the felony classification provided for the same act while unarmed, whichever permits the greater penalty. A second or subsequent violation of Section 3 3A — 2 with a Category II weapon is a Class 1 felony or the felony classification provided for the same act while unarmed, whichever permits the greater penalty.” Ill. Rev. Stat. 1979, ch. 38, pars. 33A— 1 to 33A — 3.

Although the circuit court held article 33A unconstitutional on a number of grounds, defendants’ attack on its validity is more limited. They contend first that it is unconstitutionally vague and overbroad because it fails to provide notice whether the dangerous weapon must be used to facilitate the commission of a nonviolent offense, and for the reason that it fails to provide notice that the severity of an offense may be doubly enhanced because a dangerous weapon was employed.

The People contend that because he was charged with a crime of violence, defendant Harón is without standing to attack the validity of the statute on the ground that it permits armed violence to be charged by reason of the commission of a nonviolent felony while armed with a dangerous weapon. Defendant Kehm, charged with armed violence predicated upon his carrying a derringer during the commission of a nonviolent crime, also contends that the statute is overbroad. Since we must decide the issue of overbreadth with regard to nonviolent crimes whether or not defendant Harón has standing, we need not further consider the question of Haron’s standing.

Concerning the issue of overbreadth, defendants suggest that in keeping with the rule that a statute should be construed so as to eliminate doubts as to its validity, article 33A should be construed to “require that the weapon be utilized to facilitate an offense.” They point out that there is no allegation that defendant Kehm used the weapon to facilitate delivery of cannabis or that he was not lawfully in possession of the gun.

In Western National Bank v. Village of Kildeer (1960), 19 Ill. 2d 342, 350, the court said:

“It is a primary rule in the interpretation and construction of statutes that the intention of the legislature should be ascertained and given effect. [Citations.] This is to be done primarily from a consideration of the legislative language itself, which affords the best means of its exposition, and if the legislative intent can be ascertained therefrom it must prevail and will be given effect without resorting to other aids for construction. [Citations.] There is no rule of construction which authorizes a court to declare that the legislature did not mean what the plain language of the statute imports.”

See also Franzese v. Trinko (1977), 66 Ill. 2d 136.

Section 33A — 2 prohibits the commission of any felony “while armed with a dangerous weapon.” (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2.) Section 33A — 1 defines the phrase “armed with a dangerous weapon” to include any person who “carries on or about his person or is otherwise armed with a category I or category II weapon.” (Ill. Rev. Stat. 1979, ch. 38,‘par. 33A — 1.) The language of these sections does not require that there be a connection between the underlying felony and the fact that the felon was armed with a dangerous weapon while he committed the felony.

We note that a number of other States have weapons statutes comparable to the one here involved, in that they ostensibly require no connection between the predicate offense and the presence of a weapon. (See, e.g., Ala. Code sec. 13-6-151 (1977); Cal. Penal Code sec. 12022 (Deering 1980); Del. Code Ann. tit. 11, sec. 1447 (1979); Fla. Stat. sec. 790.07 (West Supp. 1981); Ga. Code sec. 26 — 9908a (1978); Mich. Comp. Laws Ann. sec. 750.227b (1980-81 Supp.); 18 Pa. Cons. Stat. Ann. sec. 6103 (Purdon 1973); R.I. Gen. Laws sec. 11-47-3 (1980 Supp.); S.C. Code sec. 16 — 23—490 (1977); S.D. Codified Laws Ann. sec. 22 — 14—13 (1979); Tenn. Code Ann. sec. 39 — 4923 (1980 Supp.); Vt. Stat. Ann. tit. 13, sec. 4005 (1974); Wash. Rev. Code Ann. sec. 9.41.025 (1977); Wis. Stat. Ann. sec. 939.63 (West Supp. 1981); Wyo. Stat. sec. 6 — 11—116 (1980 Supp.).) Several other States prohibit, inter alia, the use of firearms in certain circumstances. (See, e.g., Colo. Rev. Stat. sec. 16 — 11—309 (1980 Supp.); Haw. Rev. Stat. sec. 706.660.1 (1976); Md. Code Ann. art. 27, sec. 36B(d) (1976); Mass. Ann. Laws ch. 265, sec. 18B (Michie 1980); Okla. Stat. Ann. tit. 21, sec. 1287 (West Supp. 1981).) A study of these divergent statutory formulations suggests the existence of two legislative approaches to the problem of armed violence. One approach prohibits and punishes the “use” of firearms in certain contexts. Of necessity in such States, there must be a connection between the underlying criminal offense and the presence of a weapon— the weapon must be used. The other approach, however, prohibits and punishes the mere possession or carrying of a weapon during the commission of a crime. In such States, the mere physical presence of a weapon while a crime is being committed is thought to be a sufficient threat to warrant proscription. (See Wayne County Prosecutor v. Recorder’s Court Judge (1979), 406 Mich. 374, 390-91, 280 N.W.2d 793, 796.) The General Assembly has clearly taken the latter approach. There is no suggestion in the statutory language that the offense proscribed requires that there be “use” of a weapon in the commission of a felony. It is clear that in amending article 33A the General Assembly intended to extend the number of circumstances in which the presence of a weapon is prohibited. (Compare, e.g., Ill. Rev. Stat. 1979, ch. 38, par. 24 — 1.) Defendants, in requesting that we superimpose on article 33A the requirement that the weapon be “utilized to facilitate the predicate felony,” are suggesting that we alter the purposes of the statute. As we have repeatedly said, it is not our function to declare that the General Assembly did not mean what the plain language of the statute imports (Illinois Power Co. v. Mahin (1978), 72 Ill. 2d 189, 194; Western National Bank v. Village of Kildeer (1960), 19 Ill. 2d 342, 350), and we decline to do so here.

Alternatively, defendants argue that “the Armed Violence Statute fails to give adequate notice of its proscriptions and thereby denies due process.” They assert that the statute is deficient because it fails to indicate whether an offender must have control over the weapon and utilize it in committing the underlying felony.

In People v. Schwartz (1976), 64 Ill. 2d 275, this court said with respect to challenges for vagueness and over-breadth :

“A criminal statute violates the requirement of due process of law if it fails to adequately give notice as to what action or conduct is proscribed. (People v. Vandiver (1971), 51 Ill. 2d 525.) Impossible standards of specificity, however, are not required. (Jordan v. De George (1951), 341 U.S. 223, 231, 95 L. Ed. 886, 71 S. Ct. 703; People v. Dednam (1973), 55 Ill. 2d 565.) As stated by Mr. Justice Marshall, ‘Condemned to the use of words, we can never expect mathematical certainty from our language.’ (Grayned v. City of Rockford (1972), 408 U.S. 104, 110, 33 L. Ed. 2d 222, 228-29, 92 S. Ct. 2294.) When called upon to decide a vagueness question, a court will assume, absent contrary legislative intent, that the words of the statute have their ordinary and popularly understood meanings. (Farrand Coal Co. v. Halpin (1957), 10 Ill. 2d 507, 510.) In addition to the language used, consideration is given to the legislative objective and the evil the statute seeks to remedy. (People v. Dednam (1973), 55 Ill. 2d 565.) A statute enjoys a presumption of constitutionality. Livingston v. Ogilvie (1969), 43 Ill. 2d 9, 12.” 64 Ill. 2d 275, 280-81.

Here, as we have indicated, the armed-violence statute clearly does not require that the presence of a weapon facilitate the predicate offense. Rather, the mere fact that a person, while committing a felony, “carries on or about his person or is otherwise armed with” a dangerous weapon is sufficient to come within the language of the statute. We cannot conclude that sections 3 3A— 1 and 33A — 2 either forbid or require the doing of an act in terms “so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.” Lanzetta v. New Jersey (1939), 306 U.S. 451, 453, 83 L. Ed. 888, 59 S. Ct. 618, 619; see also Bouie v. City of Columbia (1964), 378 U.S. 347, 12 L. Ed. 2d 894, 84 S. Ct. 1697.

Defendants also argue that the armed-violence statute is unconstitutionally vague with respect to offenses “which are already enhanced by virtue of the fact that the offender is armed.” Again they argue that the statute may be construed so as to avoid vagueness. Thus, defendants argue that “[t]he language of the sentencing provisions of the Armed Violence Statute *** supports the contention that the legislature did not intend that those felonies which have as a material element proof that the offender was armed should be utilized as predicate felonies for armed violence. The only logical conclusion to be drawn is that the legislature intended that the penalty should be the greater of either that provided for armed violence or that provided for the predicate felony.”

As support for the argument that the legislature did not intend to doubly enhance the penalty for the employment of a firearm in the commission of a misdemeanor battery, defendant relies on Busic v. United States (1980), 446 U.S. 398, 64 L. Ed. 2d 381, 100 S. Ct. 1747. There the two defendants were tried and convicted under title 18, section 924(c), of the United States Code, for carrying and using a firearm during the commission of a felony and under title 18, section 111, of the United States Code for assaulting a Federal officer with a dangerous weapon. Section 924(c) provides in part:

“(c) Whoever—
(1) uses a firearm to commit any felony for which he may be prosecuted in a court of the United States, or
(2) carries a firearm unlawfully during the commission of any felony for which he may be prosecuted in a court of the United States,
shall, in addition to the punishment provided for the commission of such felony, be sentenced to a term of imprisonment for not less than one year nor more than ten years.” (18 U.S.C. sec. 924(c) (1976).)

The defendants in Busic contended that they could not be sentenced consecutively for assaulting a Federal officer with a dangerous weapon under section 111, and for the use of a firearm in connection with that crime under section 924(c). The Third Circuit Court of Appeals initially concluded that the imposition of a doubly enhanced penalty violated the double jeopardy clause of the fifth amendment because the two statutes required proof of identical elements. It remanded for resentencing under either section 111 or section 924(c) at the government’s election. After the Supreme Court’s decision in Simpson v. United States (1978), 435 U.S. 6, 55 L. Ed. 2d 70, 98 S. Ct. 909, the court of appeals vacated its prior decision and arrived at a nearly identical conclusion on statutory grounds. Simpson involved defendants convicted of and sentenced for two aggravated bank robberies and of using firearms to commit the robberies, in violation of 18 U.S.C. section 2113(a) (1976). Section 2113(a) provides for enhancement of the penalty for bank robbery where a dangerous weapon is used. In addition, the defendants were convicted and sentenced under section 924(c), the sentences to run consecutively with those under section 2113(a). Looking to section 924(c)’s legislative history, the necessity of resolving ambiguities in criminal statutes in favor of lenity, and the rule of statutory construction that a specific provision takes precedence over a general provision, the court concluded that Congress did not intend to authorize the imposition of an additional penalty under section 924(c) where the penalty for bank robbery was already enhanced under section 2113(a).

In Busic, the government acknowledged that Simpson prohibited the imposition of similarly enhanced sentences under sections 924(c) and Ill. It contended, however, that it was entitled to proceed under the enhancement provisions of section 924(c) rather than the enhancement provisions of a predicate felony statute such as section Ill.

The Supreme Court disagreed, and held that “prosecution and enhanced sentencing under section 924(c) is simply not permissible where the predicate felony statute contains its own enhancement provision.” (446 U.S. 398, 444, 64 L. Ed. 2d 381, 388, 100 S. Ct. 1747, 1752.) Again, as in Simpson, the court placed considerable reliance on the legislative history of section 924(c). That section was offered as an amendment by Representative Eoff (114 Cong. Rec. 22231 (1968)), and passed the same day. The following comment was made by Representative Foff regarding his amendment:

“For the sake of legislative history, it should be noted that my substitute is not intended to apply to title 18, sections 111, 112, or 113 which already define the penalties for the use of a firearm in assaulting officials, with section 2231 concerning armed assaults upon process servers or with chapter 44 which defines other firearm felonies.” 114 Cong. Rec. 22232 (1968).

As in Simpson, the Supreme Court’s view of section 924(c) was reinforced by the rule that ambiguity in a criminal statute should be resolved in favor of lenity (446 U.S. 398, 406, 64 L. Ed. 2d 381, 389, 100 S. Ct. 1747, 1753), and “the principle that a more specific statute will be given precedence over a more general one, regardless of their temporal sequence” (446 U.S. 398, 406, 64 L. Ed. 2d 381, 389, 100 S. Ct. 1747, 1753).

The courts of other jurisdictions which have enacted statutes similar to the one here involved have considered the issue of double enhancement. (See, e.g., In re Shull (1944), 23 Cal. 2d 745, 146 P.2d 417; Hunter v. Delaware (Del. 1980), 420 A.2d 119, vacated (1981), 450 U.S. 991, 68 L. Ed. 2d 190, 101 S. Ct. 1689; see Albernaz v. United States (1981), 450 U.S. 333, 67 L. Ed. 2d 275, 101 S. Ct. 1137; Cone v. Florida (Fla. 1973), 285 So. 2d 12; Wayne County Prosecutor v. Recorder’s Court Judge (1979), 406 Mich. 374, 280 N.W.2d 793; Sours v. Missouri (Mo. 1980), 593 S.W.2d 208; Grace v. Harris (Okla. Crim. App. 1971), 485 P.2d 757; State v. Boudreau (1974), 113 R.I. 497, 322 A.2d 626; State v. Workman (1978), 90 Wash. 2d 443, 584 P.2d 382.) Many of the cases dealing with statutes comparable to the Illinois armed-violence statute involve double jeopardy considerations not present in this case. (For the present status, of double jeopardy claims regarding double enhancement, see Albernaz v. United States (1981), 450 U.S. 333, 67 L. Ed. 2d 275, 101 S. Ct. 1137.) However, three cases are sufficiently analogous to warrant detailed examination prior to our decision here: In re Shull (1944), 23 Cal. 2d 745, 146 P.2d 147: Wayne County Prosecutor v. Recorder’s Court Judge (1979), 406 Mich. 374, 280 N.W.2d 793; and State v. Workman (1978), 90 Wash. 2d 443, 584 P.2d 382.

In In re Shull (1944), 23 Cal. 2d 745, 146 P.2d 142, the defendant was convicted of assault with a deadly weapon and sentenced to the prescribed term of imprisonment. However, an additional consecutive term of five years was imposed pursuant to a sentence enhancement provision in the California Deadly Weapons Act which applied when a defendant committed a felony while armed with any one of a number of enumerated weapons. The California Supreme Court held that the enhancement provision was not intended to apply where the felony of which the defendant stood convicted was that of assault with a deadly weapon. As in Busic, the California court was persuaded that the specific provisions of the assault statute should control the more general terms of the Deadly Weapons Act:

“It is not unreasonable to suppose that the Legislature believed that for felonies in which the use of a gun was not one of the essential factors, such as rape, larceny, and the like, an added penalty should be imposed by reason of the fact that the defendant being armed with such a weapon would probably be more dangerous because of the probability of death or physical injury being inflicted by the weapon. Hence, such a condition would be reasonable grounds for increasing the penalty where felonies are involved which do not include as a necessary element being armed with a pistol. The Legislature has by other acts imposed an increased punishment where the only additional factor, being armed with a deadly weapon, is present. The only difference between a simple assault and one with a deadly weapon is the latter factor. The commission of a simple assault is declared a misdemeanor, and the punishment therefor is a fine of not over $500 or imprisonment in the county jail for six months, or by both. (Pen. Code, secs. 240, 241.) When there is added to the assault the use of a deadly weapon the punishment is increased to imprisonment in the state prison not exceeding ten years or in the county jail not exceeding one year or a fine not exceeding $5,000 or by both fine and imprisonment (Pen. Code sec. 245), and if section 1168(2)(a) or 3024(a) is applicable and the weapons therein mentioned are used the minimum term is fixed at five years where the perpetrator is not one previously convicted of a felony. Briefly, the Legislature has fixed the punishment for an assault where a deadly weapon is used, a particular crime, and it is not to be supposed that for the same offense without any additional factor existing the added punishment should be imposed. In felonies where a deadly weapon is not a factor in the offense, the additional punishment is imposed by section 3 of the Deadly Weapons Act, because of the additional factor of a deadly weapon being involved.
The foregoing view of the legislative intent is further fortified by the very wording of section 3. It refers to the commission of a felony as complete in itself and then adds ‘while armed’ with a pistol. The felony of assault with a deadly weapon would not be complete in itself unless the element of the weapon were present. Hence, there is no occasion for adding the weapon factor.” (Emphasis in original.) 23 Cal. 2d 745, 750-51, 146 P.2d 417, 419.

In State v. Workman (1978), 90 Wash. 2d 443, 584 P.2d 382, the defendants were found guilty of first-degree robbery (which applies to robberies committed while armed with a deadly weapon). In addition the jury returned special verdicts that the defendants had been armed with a deadly weapon, which was a firearm. The Washington Uniform Firearms Act requires the sentencing judge to impose an additional minimum sentence of five years where a defendant has attempted a felony while in possession of a firearm. However, the trial court vacated the special finding. The Washington Supreme Court affirmed, after referring to Simpson v. United States (1978), 435 U.S. 6, 55 L. Ed. 2d 70, 98 S. Ct. 909. Notwithstanding the absence in Washington of legislative history comparable to that employed in Simpson, the Washington court held that “the principle of giving precedence to the specific statute, and the rule of lenity” (90 Wash. 2d 443, 455, 584 P.2d 382, 389), prevented application of the enhancement provision to attempted first-degree robbery.

In Wayne County Prosecutor v. Recorder’s Court Judge (1979), 406 Mich. 374, 280 N.W.2d 793, one defendant was convicted of second-degree murder and the other of armed robbery. In addition, each was convicted of the separate offense of carrying or possessing a firearm during the commission of a felony. The Michigan Supreme Court held that the legislature did intend that a “felony-firearm” conviction could be founded upon a felony itself involving a firearm. It said:

“The statute decrees that any person carrying or possessing a firearm during a felony or attempted felony ‘is guilty of a felony’ and shall be imprisoned two years. This two-year sentence must be imposed ‘in addition to’ the sentence for the felony or attempted felony and must be served ‘consecutively’ to and ‘preceding’ the sentence for that crime. (Emphasis added.)
This language is markedly different from the language used by the Legislature in those statutes which are merely sentence enhancement statutes. [Whereupon the court quoted the Michigan habitual offender statute.] There is no language in this statute indicating that the defendant shall be deemed guilty of a separate felony or that a consecutive sentence is to be imposed. The one sentence originally imposed for the felony which gives rise to the habitual offender proceedings is simply increased.
The language of the felony-firearm statute is also significantly different from the language used by the Legislature in those statutes which establish mandatory minimum sentences. [Whereupon the court quoted the Michigan armed robbery statute.] Again, there is no indication of an intent to establish a separate felony or require a consecutive sentence. The sentencing judge is merely required to impose a single sentence with a minimum term of at least two years.
The language employed by the Legislature in the felony-firearm statute, especially when analyzed against the backdrop of the sentence enhancement and mandatory minimum sentencing provisions quoted above, leaves no doubt that the Legislature intended to make the carrying of a weapon during a felony a separate crime and intended that cumulative penalties should be imposed. The Legislature has clearly expressed its judgment that carrying a firearm during any felony which may, but need not necessarily, involve the carrying of a firearm, entails a distinct social harm inimical to the public health, safety and welfare which deserves separate treatment. In order to deter the use of guns, the Legislature has chosen to create a separate crime.” 406 Mich. 374, 389-91, 280 N.W.2d 793, 795-96.

The People argue that no question of the General Assembly’s intent regarding double enhancement is presented here, because “there is only a single enhancement of penalty in the present defendants’ cases, and that is from their predicate felonies to armed violence.” That is true as to defendant Kehm, but not as to defendant Harón. Although it would appear that the aggravated-battery charge could have been based on section 12 — 4(a), the aggravated-battery count against Harón charges that in committing the offense he used a deadly weapon (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 4(b)(1)). Thus the enhancement of the offense of battery to that of aggravated battery was based on the use of a deadly weapon.

Unlike the Supreme Court in Simpson and Busic, we have no legislative history to assist us in determining whether the General Assembly intended the double enhancement to apply to such charges. However, this court has recognized that a policy of lenity applies with respect to the interpretation of criminal statutes (see People ex rel. Gibson v. Cannon (1976), 65 Ill. 2d 366, 370-71; People v. Eagle Food Centers, Inc. (1964), 31 Ill. 2d 535, 539; People v. Lund (1943), 382 Ill. 213, 215-16), and also recognizes the rule of construction giving precedence to a specific provision where it conflicts with a general one. (See Bowes v. City of Chicago (1954), 3 Ill. 2d 175, 205.) Other considerations are present here, as well, however, and we need not rely solely on rules of construction to resolve the difficulty presented here as did the court in State v. Workman (1978), 90 Wash. 2d 443, 543 P.2d 382.

Our review of the language of the statute and the authorities leads us to conclude that the General Assembly did not intend that the presence of a weapon serve to enhance an offense from misdemeanor to felony and also to serve as the basis for a charge of armed violence. In our opinion the requirement of section 33A — 2 that there be the commission of a felony while armed with a dangerous weapon contemplates the commission of a predicate offense which is a felony without enhancement by the presence of a weapon. This conclusion finds support in the sentencing provisions of the article. Section 33A — 3(b) provides that a “[violation of Section 33A — 2 with a Category II weapon is a Class 2 felony or the felony classification provided for the same act while unarmed, whichever permits the greater penalty. A second or subsequent violation of Section 33A — 2 with a Category II weapon is a Class 1 felony or the felony classification provided for the same act while unarmed, whichever permits the greater penalty.” (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 3(b).) These provisions are clearly not applicable to an act which, if committed while unarmed, would be a misdemeanor. Nothing in the explicit provision that a violation of section 33A — 2 involving a Category I weapon is a Class X felony requires a different construction.

Because of the conclusions reached we need not address defendants’ constitutional contentions regarding double enhancement.

Defendants’ final contention is that the required six-year minimum term of imprisonment applicable to a violation of article 33A involving a Category I weapon (a Class X offense) violates due process under both the Illinois and United States constitutions. It is argued, with respect to defendant Kehm, that “[a] penalty statute which seeks to remedy ‘the growing incidence of violent crime’ by subjecting a non-violent deliverer of cannabis to a mandatory sentence of six to thirty years, the minimum of which is only one year less than the maximum sentence otherwise provided for such a transgression ***, is not reasonably designed to remedy that evil.”

The standard by which legislative determinations of penalty are to be judged was recently stated in People v. Bradley (1980), 79 Ill. 2d 410, 417:

“It is the general rule that the legislature, under the State’s police power, has wide discretion to prescribe penalties for defined offenses. (People v. Dixon (1948), 400 Ill. 449, 453.) The legislature’s power to fix penalties is, however, subject to the constitutional proscription which prohibits the deprivation of liberty without due process of law. (St. Louis, Iron Mountain, & Southern Ry. Co. v. Williams (1919), 251 U.S. 63, 66, 64 L. Ed. 139, 140-41, 40 S. Ct. 71, 73; Louisiana ex rel. Francis v. Resweber (1947), 329 U.S. 459, 468, 91 L. Ed. 422, 429, 67 S. Ct. 374, 378 (Frankfurter, J., concurring); Heimgaertner v. Benjamin Electric Manufacturing Co. (1955), 6 Ill. 2d 152, 158-59.)
‘We have consistently stated that the standard of a proper exercise of the police power is whether the statute is reasonably designed to remedy the evils which the legislature has determined to be a threat to the public health, safety and general welfare.’ (Heimgaertner v. Benjamin Electric Manufacturing Co. (1955), 6 Ill. 2d 152, 159.)
The test, thus, focuses on the purposes and objectives of the enactment in question.”

As is clear from the quoted language, due process considerations arise with respect to sentencing only where a defendant has been or will be deprived of liberty. Here there has been no adjudication of guilt and no sentencing. Under these circumstances we cannot conclude that defendant Kehm has been deprived of liberty without due process of law in connection with the sentencing provisions of article 33A. Moreover, any pronouncement we might make as to the reasonableness of the penalties attached to a violation of article 33A would be rendered gratuitous by a later adjudication of not guilty. Therefore, we conclude that any attack on the sentencing provisions of article 33A is premature. But see People v. Mayberry (1976), 63 Ill. 2d 1, 8.

For the reasons stated, the judgment of the circuit court of Jackson County is affirmed as to the dismissal of the armed-violence count against Harón and is otherwise reversed. The cause is remanded for proceedings consistent with this opinion.

Affirmed in part and reversed in part and remanded.


author: MR. JUSTICE UNDERWOOD

text:
    (No. 53635.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. LEONARD MYERS, Appellee.

      Opinion filed June 4, 1981.

    — Rehearing denied October 19, 1981.

      Tyrone C. Fahner and William J. Scott, Attorneys General, of Springfield, and, Edward F. Petka, State’s Attorney, of Joliet (Melbourne A. Noel, Jr., and David Cassorla, Assistant Attorneys General, of Chicago, and John X. Breslin and Kenneth A. Wilhelm, of the State’s Attorneys Appellate Service Commission, of Ottawa, of counsel), for the People.
    Robert Agostinelli, Deputy Defender, and G. Joseph Weller, Assistant Defender, of the Office of the State Appellate Defender, of Ottawa, for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

Defendant, Leonard Myers, was convicted by a Will County jury of attempted murder, armed violence, armed robbery, and aggravated kidnaping. He received concurrent sentences of 20 years’ imprisonment for each offense. The appellate court vacated the conviction and sentence for attempted murder and otherwise affirmed. (83 Ill. App. 3d 1073.) We granted the State’s petition for leave to appeal from the reversal of the attempted-murder judgment.

Testimony of the State’s witnesses, Melvin Schmidt, Kevin Jensen and Dr. William Sims, as to the following events was uncontradicted. On the night of June 15, 1978, three young men, Rick Landeen, Jensen, and Schmidt, were returning, in Jensen’s Thunderbird, from a baseball game in Chicago. Jensen offered a ride to three men, Elijah Barfield, Jerry DeLooch, and the defendant, who were walking along 1-55. The three accepted, and Jensen proceeded to deliver Landeen to his home in La Grange. The other five then continued, making one stop so that Jensen, Barfield, DeLooch, and defendant could steal some gas. The auto traveled generally southward, with Jensen driving, Schmidt in the right-front passenger seat, and the other three in the rear seat. Realizing that he would not have enough gas to reach his own home if he took the three hitchhikers any farther toward their Joliet-Lockport destination, Jensen stopped the car near an 1-55 interchange to let them out.

At that point, defendant, who was seated behind Schmidt, and who apparently had concealed in his clothing an old rusty machete with a blade approximately 10 to 12 inches in length, placed the machete against Schmidt’s throat and held it there with his hands cupped, underhanded, cutting the neck almost immediately. Jensen then agreed to take the defendant farther and pulled onto 1-55. Barfield, who was seated behind Jensen, held a gun to Jensen’s head. Schmidt had instinctively grabbed defendant’s wrists and struggled for approximately a minute in an attempt to pull the machete away from his throat, but submitted when defendant told him, “Get your hands down or I am going to cut your head off.” After Schmidt lowered his hands, he testified that defendant started “yanking” even harder “twisting or working the knife into me.” Defendant ignored Schmidt’s ruse in requesting a cigarette, as well as his appeal that defendant put the knife down.

According to Jensen’s testimony, the defendant twice moved the knife from Schmidt’s throat in order to menace Jensen. Defendant, apparently fearing that consulting a map was intended to enable those in passing cars to see him with a knife at Schmidt’s throat, first threatened Jensen with the knife when Jensen started to turn on the car’s map light. Jensen did not turn on the light at that point, but both Jensen and Schmidt testified that, when Jensen later turned it on, defendant moved the knife from Schmidt’s throat and cut Jensen’s fingernail by “flicking” the knife across Jensen’s thumb. Defendant then moved the knife back to Schmidt’s throat and gave “a pretty hefty yank” on it. Schmidt asked the defendant if he could spit blood out the window, because it felt as if his throat was filling with blood, and he couldn’t breathe. Although defendant refused permission, Schmidt tried to spit anyway. Jensen then told defendant to take the car, “Just take it, let us off.” Defendant, however, told Bar-field, referring to Schmidt, to “Knock him out” or “Put him out.” Barfield then struck Schmidt’s head approximately six times with the gun, while defendant was vigorously “yanking” on Schmidt’s throat with the knife. As the gun was taken from Jensen’s head to strike Schmidt, Jensen heard air whistling through Schmidt’s wound, indicating that the windpipe had been cut.

Defendant then ordered Jensen to drive off 1-55 onto a highway, and onto a side road, and the car then began to run out of gas. Defendant lowered the knife from Schmidt’s throat and asked for his wallet, which Schmidt gave him. Thereafter Schmidt used both hands to try to hold his neck together. The car stopped completely at a point on the road where some house lights were visible in the distance. Defendant then dragged Schmidt by the neck from the car, frisked him, and took him to the front of the car, Schmidt stumbling several times against it. There Schmidt leaned against Jensen, whom Barfield had forced to stand in front of the still-burning headlights. Defendant told Jensen and Schmidt, “Don’t run towards the lights or you will be finished off.”

Both Jensen and Schmidt testified that they had believed that Schmidt would die of his injuries. Schmidt testified that he had been “really woozy” and unable to walk to the lights. Since the cars on the road would not stop for them, Jensen finally jumped in front of one in order to stop it. Schmidt got into the car and asked to be taken to a hospital. At the hospital he was taken immediately to an operating room because of the seriousness of his injuries. The surgeon who treated him testified that he had suffered a 414 inch wound, which was “gaping wide.” The wound, which was approximately 5/8 inch to 3/4 inch deep at its deepest point, had opened Schmidt’s windpipe, and, had it penetrated just a little more deeply, would have hit the carotid artery and jugular vein. The surgeon testified that there was an immediate danger of suffocation from blood being taken into the lungs. It is apparent from the testimony and exhibits, including Schmidt’s blood-soaked shirt and T-shirt and photographs of the interior and exterior of the car that he had lost a substantial amount of blood.

The definitions of the crimes of attempt, armed violence, and aggravated battery are relevant in our consideration of this case:

“Sec. 8 — 4. Attempt, (a) Elements of the Offense.
A person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense.” Ill. Rev. Stat., 1978 Supp., ch. 38, par. 8 — 4.
“Sec. 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.” Ill. Rev. Stat., 1978 Supp., ch.
38, par. 33A — 2.
“Sec. 12 — 4. Aggravated Battery.
(a) A person who, in committing a battery, intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement commits aggravated battery.
(b) A person who, in committing a battery either:
(1) Uses a deadly weapon;
commits aggravated battery.
(d) Sentence.
Aggravated battery is a Class 3 felony.” Ill. Rev. Stat. 1977, ch. 38, par. 12-4.

The appellate court held that the attempted murder here was a lesser included offense in the armed-violence charge, a holding which the parties and we agree is incorrect. Regardless of whether attempted murder is ever a lesser included offense of armed violence (see Blockburger v. United States (1932), 284 U.S. 299, 76 L. Ed. 306,52 S. Ct. 180; Gore v. United States (1958), 357 U.S. 386, 2 L. Ed. 2d 1405, 78 S. Ct. 1280; Illinois v. Vitale (1980), 447 U.S. 410, 65 L. Ed. 2d 228, 100 S. Ct. 2260), it clearly was not so here (People v. Smith (1980), 78 Ill. 2d 298, 306; People v. Vriner (1978), 74 Ill. 2d 329, 346-47, cert. denied (1979), 442 U.S. 929, 61 L. Ed. 2d 296, 99 S. Ct. 2858). The armed-violence conviction here was based upon the underlying felony of aggravated battery, which does not require proof of the intent to kill necessary for the attempted-murder conviction. People v. Trinkle (1977), 68 Ill. 2d 198.

While defendant does not claim any violation of double jeopardy principles, the case does present a question whether defendant’s behavior, under the doctrine of People v. King (1977), 66 Ill. 2d 551, cert denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273, can support convictions and concurrent sentences for attempted murder and for armed violence based on aggravated battery. Defendant argues that both offenses were based on the same physical act, the cutting of Schmidt’s neck. In King, this 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.” (66 Ill. 2d 551, 566.)

In King this court abandoned the “independent motivation” test with respect to multiple convictions and concurrent sentences (see People v. Scott (1977), 69 Ill. 2d 85) and effectively broadened the circumstances under which they could be imposed. (Compare People v. Stewart (1970), 45 Ill. 2d 310.) As long as there are multiple acts as defined in King, their interrelationship does not preclude multiple convictions and the imposition of concurrent sentences based upon them. For example, one “stickup,” involving armed robbery of several victims, supports multiple convictions. People v. Thomas (1977), 67 Ill. 2d 388.

According to Jensen, the defendant moved the knife from Schmidt’s neck twice while threatening Jensen. The distinctness of the first movement is unclear. However, it would seem logical that it amounted to a physical act, since the fact that Jensen felt sufficiently menaced that he did not turn on the light indicates the action would have supported an assault conviction (Ill. Rev. Stat. 1977, ch. 38, par. 12 — 1). In any event, the record is clear from testimony of both Jensen and Schmidt that, when Jensen did turn on the map light, defendant moved the knife a sufficient distance from Schmidt’s throat to cut Jensen’s fingernail. That movement clearly amounted to “an overt or outward manifestation sufficient to support a different offense,” since the cutting necessarily involved a movement of some distance and would support a charge of battery (Ill. Rev. Stat. 1977, ch. 38, par. 12 — 3). Each movement toward Jensen interrupted the attack on Schmidt. Since the movement toward Jensen was a distinct physical act, there were at least two physical acts with respect to Schmidt.

Further, both the movement of the knife from Jensen’s fingernail to Schmidt’s throat, and the subsequent “pretty hefty yank” on the neck, which the jury could reasonably conclude was the blow which severed the windpipe, were sufficient to constitute physical acts separate from the first cut on Schmidt’s neck. Two separate invasions of Schmidt’s body, even though closely related by reason of the fact that they attacked the same area of his body and were close in time, were not one physical act. If a jury believes that a defendant wounds a victim, then, after an intervening attack on a third person, attacks the original victim again, whether there is only one physical act cannot depend, as defendant implies, upon whether the defendant was careful to insert the knife through the same open wound.

Defendant also contends that it was not proved beyond a reasonable doubt that he intended to kill Schmidt. As earlier noted, a conviction for attempted murder must be supported by proof that the defendant had a specific intent to kill the victim. The instructions in the present case, to which no objection has been raised, adequately informed the jury of that requirement. People v. Barker (1980), 83 Ill. 2d 319; People v. Jones (1979), 81 Ill. 2d 1.

The specific intent to kill, a state of mind, may be shown by circumstances. (People v. Barker (1980), 83 Ill. 2d 319; People v. Jones (1979), 81 Ill. 2d 1; People v. Koshiol (1970), 45 Ill. 2d 573.) Here, the jury could have concluded from the testimony and exhibits that the defendant believed, as did Jensen and Schmidt, that Schmidt would bleed to death from his injuries and that defendant had done all that was necessary to achieve that result. (See Zickefoose v. State (1979),---Ind.---, 388 N.E.2d 507.) Or, possibly, the jury could have accepted the argument that the machete was so dull and rusty that defendant found it difficult to accomplish his purpose and did not want to use Barfield’s gun because of the possibility of attracting attention. Or the jury might have regarded defendant as a sadist who preferred leaving his victim to suffocate or bleed to death, a not inconceivable situation in view of the evidence. In Jones even instructions containing error with respect to specific intent were held harmless, because the intent to kill was blatantly evident from circumstances, including the fact that the victim was shot four times in the back of the head. While it may be argued that four shots in the victim’s head are more clearly indicative of intent to kill than is cutting the victim’s throat and leaving him, with a cut windpipe, bleeding severely, and without transportation on a side road at night, the latter evidence is, in our opinion, ample to warrant a properly instructed jury inferring that defendant had formed the intent to kill Schmidt.

Even if it could be shown that the defendant did, at the end of the incident, abandon his intent to kill Schmidt, that would not affect our decision. There is no indication that the rule in Illinois is not in accord with the majority rule (State v. Workman (1978), 90 Wash. 2d 443, 450, 584 P.2d 382, 386; State v. Thomas (Mo. 1969), 438 S.W.2d 441; Howard v. Commonwealth (1966), 207 Va. 222, 148 S.E.2d 800; 21 Am. Jur. 2d Criminal Law sec. 110 (1965), 22 C.J.S. Criminal Law sec. 76 (1961)) that once the elements of attempt are complete, abandonment of the criminal purpose is no defense. People v. Hiller (1955), 7 Ill. 2d 465, 470;People v. Davis (1979), 70 Ill. App. 3d 454, 456. See People v. Kruse (1943), 385 Ill. 42, cert. denied (1946), 328 U.S. 874, 90 L. Ed. 1644, 66 S. Ct. 1380; People v. Anderson (1943), 382 Ill. 316;People v. Lardner (1921), 300 Ill. 264.

Defendant also, on the basis of the arguments presented to us in People v. Haron (1981), 85 Ill. 2d 261, asserts the unconstitutionality of the armed-violence statute, alleging it violates the due process clauses of both the Federal and State constitutions. That issue, however, was not reached by us in Harón, and in this case was not presented to either the trial or appellate courts. It has, therefore, been waived. People v. Williams (1977), 66 Ill. 2d 179.

The judgment of the appellate court is accordingly reversed insofar as it vacated the conviction and sentence for attempted murder; it is affirmed insofar as it affirmed the other convictions and sentences. The judgment of the circuit court of Will County is affirmed.

Appellate court affirmed in part and reversed in part; circuit court affirmed.