From Casetext: Smarter Legal Research

People v. Smith

Appellate Court of Illinois, Third District. Affirmed in part, and reversed in part and remanded
Dec 31, 1976
358 N.E.2d 736 (Ill. App. Ct. 1976)

Opinion

No. 76-262

Opinion filed December 31, 1976.

APPEAL from the Circuit Court of Henry County; the Hon. CONWAY L. SPANTON, Judge, presiding.

Robert Agostinelli, of State Appellate Defender's Office, of Ottawa, for appellant.

William K. O'Connor, State's Attorney, of Cambridge, for the People.


After a bench trial in the Circuit Court of Henry County, the defendant was convicted of one count of rape and one count of indecent liberties with a child. Both counts of the indictment were based on a single act of sexual intercourse on the same complainant, on the same day and at precisely the same time. Nevertheless, the defendant was convicted of both offenses and sentenced for both.

In his appeal, the defendant raises two issues. First, did the trial court err in entering judgment on the lesser included offense? Secondly, was the sentence of not less than 50 years nor more than 150 years excessive for a conviction of rape?

• 1 Where a defendant has been convicted and sentenced for two offenses involving exactly the same conduct and the same victim, the conviction for the lesser offense must be set aside. ( People v. Lilly (1974), 56 Ill.2d 493, 309 N.E.2d 1; People v. Wilcoxen (3d Dist. 1974), 23 Ill. App.3d 377, 319 N.E.2d 86.) Therefore, the conviction of indecent liberties with a child is reversed.

• 2 The defendant's sentence was imposed for the convictions of both rape and indecent liberties with a child. Since the severity of the sentence may have been motivated by the trial judge's belief that both convictions could stand, we must remand this case for resentencing on the conviction for rape, which is not challenged in this appeal. (See People v. Butler (5th Dist. 1975), 31 Ill. App.3d 433, 334 N.E.2d 831.) Because of this result, we need not decide whether the sentence imposed was excessive for the conviction of rape alone.

Accordingly, we affirm the judgment of the Circuit Court of Henry County concerning the charge of rape. However, we reverse the judgment of indecent liberties with a child and remand for resentencing on the conviction of rape.

Affirmed in part, reversed in part and remanded.

ALLOY, P.J., and STOUDER, J., concur.


Summaries of

People v. Smith

Appellate Court of Illinois, Third District. Affirmed in part, and reversed in part and remanded
Dec 31, 1976
358 N.E.2d 736 (Ill. App. Ct. 1976)
Case details for

People v. Smith

Case Details

Full title:THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDMOND L…

Court:Appellate Court of Illinois, Third District. Affirmed in part, and reversed in part and remanded

Date published: Dec 31, 1976

Citations

358 N.E.2d 736 (Ill. App. Ct. 1976)
358 N.E.2d 736

Citing Cases

People v. Hines

Here, both counts of the information specified that they were based on the single act of anal intercourse.…

People v. Smith

The petitioner was sentenced to imprisonment for a term of 50 to 150 years. On appeal, this court vacated the…