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Dangerous Weapons for Armed Violence Defeats Proportionate Penalties Challenge
People v. Hernandez, 2016 IL 118672 (May). Episode 175 (Duration 7:12)
The common-law definition of “dangerous weapon” found in the armed robbery statute is broader than the definition of “dangerous weapon” in the armed violence statute.
40 year extended sentence is constitutional (defendant is doing 80 in total).
FactsDefendant was found guilty of armed robbery “while armed with a dangerous weapon, a bludgeon,” under 720 ILCS 5/18-2(a). Defendant used big heavy medal shears to hit an elderly couple over the head and force them to open a safe.
IssueDefendant's claim is that his 40-year, extended-term, Class X sentence imposed on remand for armed robbery violated the proportionate penalties clause because it had the same elements as the lesser Class 2 offense of armed violence with a Category III weapon.
Ligon CaseThis issue has already been settled in the February 2016 of People v. Ligon, 2016 IL 118023.
There the court said that many objects, including the BB gun defendant possessed in this case, satisfy the ‘dangerous weapon’ element of AVH/DW, but not the ‘Category III weapon’ element of armed violence with a category III dangerous weapon.
Dangerous Weapon (Common Law)“Dangerous weapon” is not defined in either the armed robbery statute at issue here, or the AVH/DW statute at issue in Ligon, but is derived from common law.
A dangerous weapon is a question of fact and includes any object sufficiently susceptible to use in a manner likely to cause serious injury. Therefore, the definition of dangerous weapon for purposes of the armed robbery statute includes not only objects that are per se dangerous, but objects that are used or may be used in a dangerous manner.
Dangerous Weapon (Armed Violence)In contrast, for purposes of the armed violence statute, a person is considered “armed with a dangerous weapon” when he or she “carries on or about his or her person or is otherwise armed with a Category I, Category II, or Category III weapon.” 720 ILCS 5/33A-1(a).
Category III weapons are defined as “a bludgeon, black-jack, slungshot, sand-bag, sand club, metal knuckles, billy, or other dangerous weapon of like character.” Thus, Category III dangerous weapons for purposes of the armed violence statute are defined by the statute and are therefore limited to the weapons identified by the statute.
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By Samuel Partida, Jr.
4.4
4949 ratings
People v. Hernandez, 2016 IL 118672 (May). Episode 175 (Duration 7:12)
The common-law definition of “dangerous weapon” found in the armed robbery statute is broader than the definition of “dangerous weapon” in the armed violence statute.
40 year extended sentence is constitutional (defendant is doing 80 in total).
FactsDefendant was found guilty of armed robbery “while armed with a dangerous weapon, a bludgeon,” under 720 ILCS 5/18-2(a). Defendant used big heavy medal shears to hit an elderly couple over the head and force them to open a safe.
IssueDefendant's claim is that his 40-year, extended-term, Class X sentence imposed on remand for armed robbery violated the proportionate penalties clause because it had the same elements as the lesser Class 2 offense of armed violence with a Category III weapon.
Ligon CaseThis issue has already been settled in the February 2016 of People v. Ligon, 2016 IL 118023.
There the court said that many objects, including the BB gun defendant possessed in this case, satisfy the ‘dangerous weapon’ element of AVH/DW, but not the ‘Category III weapon’ element of armed violence with a category III dangerous weapon.
Dangerous Weapon (Common Law)“Dangerous weapon” is not defined in either the armed robbery statute at issue here, or the AVH/DW statute at issue in Ligon, but is derived from common law.
A dangerous weapon is a question of fact and includes any object sufficiently susceptible to use in a manner likely to cause serious injury. Therefore, the definition of dangerous weapon for purposes of the armed robbery statute includes not only objects that are per se dangerous, but objects that are used or may be used in a dangerous manner.
Dangerous Weapon (Armed Violence)In contrast, for purposes of the armed violence statute, a person is considered “armed with a dangerous weapon” when he or she “carries on or about his or her person or is otherwise armed with a Category I, Category II, or Category III weapon.” 720 ILCS 5/33A-1(a).
Category III weapons are defined as “a bludgeon, black-jack, slungshot, sand-bag, sand club, metal knuckles, billy, or other dangerous weapon of like character.” Thus, Category III dangerous weapons for purposes of the armed violence statute are defined by the statute and are therefore limited to the weapons identified by the statute.