People v. McDonald

First Division
June 30, 2006

No. 1-03-1283

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
) the Circuit Court
Plaintiff-Appellee, ) of Cook County
)
v. ) 98 CR 19923
)
LAWRENCE McDONALD, ) Honorable
) Michael P. Toomin
Defendant-Appellant. ) Judge Presiding
JUSTICE McBRIDE delivered the modified opinion of the court upon denial of

rehearing:

Defendant, Lawrence McDonald, was charged by indictment with two counts of armed

robbery and one count of aggravated battery. Following a bench trial, defendant was convicted

of two counts of aggravated robbery, an uncharged offense, and sentenced to 28 years in the

Illinois Department of Corrections (IDOC). Defendant's convictions were reversed on appeal

and the case was remanded for a new trial. People v. McDonald, 321 Ill. App. 3d 470, 471

(2001). Following a second bench trial on the original charges, defendant was found guilty of

two counts of armed robbery and sentenced to an extended-term sentence of 45 years in the

IDOC.

Defendant now appeals and argues that the second trial on the original charges of armed

robbery violates the double jeopardy clause of both the United States Constitution (U.S. Const.,

amends. V, XIV) and the Illinois Constitution (Ill. Const. 1970, art. I, '10), as well as section 3-4

of the Illinois Criminal Code of 1961 (720 ILCS 5/3-4 (West 1998)). Defendant asks this court

to set aside the armed robbery conviction, correct the judgment order to reflect the finding on the
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lesser-included offense of robbery, and remand for sentencing on that conviction. On July 31,

1998, defendant was charged by indictment with two counts of armed robbery (720 ILCS 5/18-

2(a)(2) (West Supp. 1999)) and one count of aggravated battery (720 ILCS 5/12-4(b)(10) (West

1998)) in connection with the July 18, 1998, robbery of the Hollywood Grill. 1

At defendant=s bench trial, the State presented the testimony of several witnesses. Two

patrons of the Hollywood Grill testified that they saw defendant enter the restaurant, wave a gun

around and point it at a waitress, and order everyone to the ground. After the robbery, these two

men flagged the attention of police and they accompanied the police as they trailed defendant.

Defendant was captured by police a short time later. Both men identified defendant as the man

who robbed the Hollywood Grill, and one recognized the gun left in defendant=s car as similar to

the gun used in the robbery. Two other witnesses testified that they were present for the robbery

and later identified defendant in a lineup. Following the bench trial, defendant was found guilty

of two counts of aggravated robbery (720 ILCS 5/18-5 (West 1998)), an uncharged offense, and

sentenced to an extended-term sentence of 28 years in the IDOC. Defendant challenged his

convictions on appeal, arguing that aggravated robbery was not a lesser-included offense of

armed robbery and that he was deprived of due process because he was convicted of a crime not

1
Prior to trial, the aggravated battery charge was disposed of by means of nolle
prosequi.

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charged in the indictment. Although he conceded that he waived the issue for appellate review,

defendant argued that plain error review required that his convictions be reduced to simple

robbery (720 ILCS 5/18-1 (West 1998)) and that the case be remanded for a new sentencing

hearing.

This court initially rejected defendant's arguments and affirmed his aggravated robbery

convictions based on the doctrine of invited error. McDonald, No. 1-99-1631 (November 13,

2000) (unpublished order under Supreme Court Rule 23). The court held that because defense

counsel had repeatedly argued during trial that aggravated robbery, not armed robbery, was the

more appropriate crime, the issues had been waived for review. McDonald, slip op. at 9-11.

Defendant filed a petition for rehearing and argued that the court was without jurisdiction to

convict defendant of a crime not charged or contemplated in the indictment and that his

conviction violated his due process rights.

In response to defendant's petition for rehearing, this court withdrew its original Rule 23

order and took defendant's petition with the case. People v. McDonald, 321 Ill. App. 3d 470,

471 (2001) (McDonald I). The court found that review was warranted under the principles of

plain error. McDonald, 321 Ill. App. 3d at 471. Thereafter, this court reversed defendant's

aggravated robbery convictions and sentence finding that the uncharged aggravated robbery

offenses were not lesser-included offenses of the charged armed robbery offenses and because

they were not charged, defendant could not be convicted of those offenses. McDonald, 321 Ill.

App. 3d at 472-74. This court rejected defendant's request to reduce his convictions to robbery

and instead remanded the case for a new trial. McDonald, 321 Ill. App. 3d at 474-75. In so

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holding, we expressly addressed the issue of double jeopardy.

On remand, defendant filed a pretrial motion to bar prosecution based on the implied

acquittal rule. Defendant argued that in the previous trial, he was impliedly acquitted of the

charges of armed robbery when the trial judge found him guilty of aggravated robbery. The trial

court denied defendant's motion, stating that this court=s decision in McDonald I already rejected

defendant=s arguments and it would not overrule the appellate court.

A bench trial commenced on October 10, 2002. Following the presentation of the State's

case on retrial, defendant moved for a directed verdict which was denied. Thereafter, the trial

court found defendant guilty of two counts of armed robbery. After a sentencing hearing, the

trial court sentenced defendant to an extended-term sentence of 45 years in the IDOC. This

appeal followed.

On appeal, defendant argues that his retrial for armed robbery violates the double

jeopardy clause of both the United States Constitution (U.S. Const., amends. V, XIV) and the

Illinois Constitution (Ill. Const. 1970, art. I, '10), as well as section 3-4 of the Illinois Criminal

Code (720 ILCS 5/3-4 (West 1998)). According to defendant, his armed robbery conviction

cannot stand because the trial court's finding that defendant was guilty of aggravated robbery in

his first trial was (1) an Aimplied conviction@ of simple robbery, a lesser-included offense of

armed robbery, which should have prevented him from being placed at further risk at a second

trial; and (2) an Aimplied acquittal@ of the greater offense, armed robbery, which should have

prevented a second trial on the same charge. The State responds that the double jeopardy claims

made by defendant are barred by the doctrine of law of the case. The State further asserts that

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even if the law of the case doctrine does not bar defendant's claims, defendant's retrial did not

violate double jeopardy because (1) the judgment of conviction in the first trial was void and,

therefore, defendant's conviction for aggravated robbery cannot support a finding of an implied

conviction for robbery; and (2) aggravated robbery is not a lesser-included offense of armed

robbery and, therefore, the implied acquittal doctrine does not apply.

We first address whether the doctrine of the law of the case prohibits our review. It is

well established that the doctrine of the law of the case bars relitigation of an issue already

decided in the same case. People v. Tenner, 206 Ill. 2d 381, 395 (2002). The doctrine of the law

of the case provides that an issue of law decided on a previous appeal is binding on the circuit

court on remand as well as the appellate court on a subsequent appeal. Martin v. Federal Life

Insurance Co. (Mutual), 268 Ill. App. 3d 698, 701 (1994). The purpose of the law of the case

doctrine is to protect settled expectations of the parties, ensure uniformity of decisions, maintain

consistency during the course of a single case, effectuate proper administration of justice, and

bring litigation to an end. Emerson Electric Co. v. Aetna Casualty & Surety Co., 352 Ill. App. 3d

399, 417 (2004).

The State contends that the law of the case doctrine clearly applies in this case.

According to the State, this court has already considered and rejected the identical claims

defendant now advances on appeal and, therefore, precludes our review of the same. With

respect to defendant's implied acquittal argument, the State directs the court's attention to our

earlier decision in McDonald I, wherein we stated:

AIt could be argued that the trial court impliedly acquitted

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[defendant] of armed robbery and that double jeopardy would bar a

new trial on this charge. U.S. Const., amend. V; Ill. Const.1970,

art. I, '10. ("No person shall be *** twice put in jeopardy for the

same offense"). We disagree.

***

*** [B]ecause the implied acquittal rule applies only to

convictions on lesser included offenses, the rule has no effect in

the case at bar. [Citations.]@ (Emphasis omitted.) McDonald, 321

Ill. App. 3d at 474.

The State further argues that we have also previously rejected defendant's argument that

by finding him guilty of aggravated robbery, the trial judge impliedly convicted him of the

lesser-included offense of simple robbery. In our earlier decision, this court specifically refused

to grant defendant's request to reduce his conviction of aggravated robbery to the lesser-included

offense of robbery stating: AWe cannot afford McDonald his requested relief: no convictions

remain for us to reduce under Rule 615(b)(3). [Citations.]@ McDonald, 321 Ill. App. 3d at 475.

According to the State, our previous decision on the issues now before us prevents us from

reconsidering defendant's arguments.

Defendant maintains that the law of the case doctrine is a discretionary doctrine which

may, and should, be disregarded by this court in this case. Defendant acknowledges that the

doctrine of the law of the case is a rule of judicial economy, to prevent litigants from taking A

>two bites out of the same appellate apple= @ (People v. Tenner, 206 Ill. 2d 381, 395 (2002),

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quoting People v. Partee, 125 Ill. 2d 24, 37 (1988)), and that it is Aa way to foreclose continued

appeals for reconsideration of prior rulings of law@ (Gertz v. Robert Welch, Inc., 680 F. 2d 527,

532 (7th Cir. 1982)). Nevertheless, defendant argues that this court should Anot enforce law of

the case where it is clearly erroneous or where doing so would produce an injustice.@ According

to defendant, a Agrave injustice would be countenanced if this Court allowed a discretionary

doctrine to preempt review of [defendant's] elemental constitutional right against double

jeopardy.@

Defendant is correct that the law of the case is a discretionary doctrine and that there are

two exceptions to its application: (1) Awhen a higher reviewing court, subsequent to the lower

reviewing court's decision, makes a contrary ruling on the same issue@ and (2) where the court

finds that its prior decision was palpably erroneous, but only when the court remanded the case

for a new trial on all issues. Martin, 268 Ill. App. 3d at 701. We find that the second exception

applies to this case in that our earlier decision was palpably erroneous, and for the reasons that

follow, we vacate the armed robbery conviction in the second trial and reinstate the original

finding of aggravated robbery in the first trial.

This court=s decision in McDonald I to remand for a new trial was palpably erroneous

because under the doctrine of invited error, the trial court=s original finding of aggravated

robbery was proper and should not have been considered as plain error. The rule of invited

error or acquiescence is a procedural default sometimes described as estoppel. In re Detention of

Swope, 213 Ill. 2d 210, 217 (2004). ASimply stated, a party cannot complain of error which that

party induced the court to make or to which that party consented. The rationale behind this

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well-established rule is that it would be manifestly unfair to allow a party a second trial upon the

basis of error which that party injected into the proceedings.@ Swope, 213 Ill. 2d at 217; see also

People v. Carter, 208 Ill. 2d 309, 319 (2003); McMath v. Katholi, 191 Ill. 2d 251, 255 (2000);

People v. Segoviano, 189 Ill. 2d 228, 240-41 (2000); People v. Schickel, 347 Ill. App. 3d 889,

896-97 (2004). A[W]here the trial court's course of action is taken at defendant's suggestion and

the defendant thereafter acquiesces in the court's expressed course of conduct, the defendant

should be precluded from raising such course of conduct as error on appeal.@ People v. Abston,

263 Ill. App. 3d 665, 671 (1994); see also People v. Crossley, 236 Ill. App. 3d 207, 217 (1992)

(A[w]here a party acquiesces in proceeding in a given manner, he is not in a position to claim he

was prejudiced thereby@); People v. George, 263 Ill. App. 3d 968, 972 (1993) (A[i]t is indeed

insufferable to allow defendant to knowingly participate in a bench trial without protest * * *

with a view that if an adverse judgment is rendered, he would be granted a new trial@).

We find that the analysis in Schickel controls in the present case. In Schickel, the

defendant was indicted for first and second degree murder, felony murder based upon mob

action, and aggravated battery, but the State dismissed all counts before trial except felony

murder. Schickel, 347 Ill. App. 3d at 889-90. During closing argument, defense counsel asked

the trial court to consider the lesser-included charge of involuntary manslaughter even though

involuntary manslaughter was not charged as a lesser-included offense of felony murder.

Schickel, 347 Ill. App. 3d at 893-94. On appeal, the defendant asked the reviewing court to hold

that under Illinois case law involuntary manslaughter was not a lesser-included offense of felony

murder and that his conviction be reversed for this reason. Schickel, 347 Ill. App. 3d at 895-96.

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The Schickel court declined to reverse based on the invited error doctrine. Schickel, 347

Ill. App. 3d at 896. The court looked to the precedential case of People v. Clements, 316 Ill. 282

(1925), where the defendant contended it was error for the trial court to submit the charge of

manslaughter to the jury and to sentence him for manslaughter even though defendant requested

such an instruction. Clements, 316 Ill. at 283. In rejecting the defendant=s argument, the

supreme court held:

AIt is a well settled principle of law that a party will not be allowed

to take advantage of his own wrong or of an error of the court

induced by his own motion. If it was error to instruct the jury upon

the question of manslaughter and to submit to the jury the question

of plaintiff in error's guilt of the crime of manslaughter, plaintiff in

error invited the error, and having done so must accept its results.

He cannot ask the court below to make a specific ruling or to

proceed in a certain manner and then successfully assign as error

in a court of review that the ruling or action of the court is

erroneous. [Citations.]@ Clements, 316 Ill. at 284.

The reviewing court also looked to the more recent decision in People v. Feldmann, 314

Ill. App. 3d 787 (2000), for guidance. Schickel, 347 Ill. App. 3d at 897-98. In Feldmann, the

defendant was charged with first degree murder, but asked the trial court to allow the jury to

consider involuntary manslaughter. The jury then found the defendant guilty of involuntary

manslaughter. Feldmann, 314 Ill. App. 3d at 788-89. The defendant appealed, arguing that the

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jury verdict was not supported by the evidence at trial and the defendant was entitled to a

reversal. Feldmann, 314 Ill. App. 3d at 790. AA defendant cannot successfully argue for a

lesser-included-offense instruction, allowing deliberation on whether that lesser-included offense

was committed, and later challenge the sufficiency of the evidence to support a verdict in favor

of the defendant's lesser guilt. [Citations.] The defendant could not ask the trial judge to proceed

in the manner employed and expect us to assign his favorable ruling as a reason to reverse her

conviction.@ Feldmann, 314 Ill. App. 3d at 797.

The defendant in Schickel attempted to distinguish Clements by contending that in that

case involuntary manslaughter was still a viable lesser-included offense, whereas in his case,

involuntary manslaughter was not charged in the indictment and, therefore, was not a viable

option. Schickel, 347 Ill. App. 3d at 898. The court agreed with the defendant that the facts

presented differed, but saw no reason to depart from the premise that Aa defendant will be held

accountable for any mistakes he injects into his own trial.@ Schickel, 347 Ill. App. 3d at 898.

The Schickel court concluded:

AHowever, where a defendant has indicated to a trial court that he

is aware of the possibility that he could be found guilty of a certain

crime, even going so far as to suggest that the trial court consider it

as an alternative possibility, he cannot seriously contend on appeal

that he was unaware of that very charge. Certainly, where defense

counsel proposed >other options= to the court, and the defendant

himself assented to the court's consideration of those >options,= it is

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safe to say that he was sufficiently apprised of those charges.@

(Emphasis omitted.) Schickel, 347 Ill. App. 3d at 898.

The court in Schickel went on to find that Awhere the overarching purpose of a

defendant's right to be informed of the nature and cause of the charges against him is to provide

him with the ability to prepare a defense and to assure him that the charged offense may serve as

a bar to subsequent prosecution arising out of the same conduct [citation], the intended goals of

that constitutional right have been met here where the defendant himself argued that the court

should consider involuntary manslaughter, and that charge would operate as a bar to a later

prosecution for involuntary manslaughter.@ Schickel, 347 Ill. App. 3d at 899.

Finally, the court found that the defendant=s argument was not reviewable as plain error

under Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)). Schickel, 347 Ill. App. 3d at 899-900.

The court held that the record on appeal showed that Aany issue regarding notice to the

defendant was waived, and if not waived, any conceivable error did not affect the fairness of the

proceedings.@ Schickel, 347 Ill. App. 3d at 900.

As in Schickel, the alleged error in the present case was injected into the trial by defense

counsel=s comments and conduct. On multiple occasions, defendant=s attorney asserted to the

trial court that aggravated robbery was the more appropriate charge because the evidence did not

support armed robbery. At the outset of the trial, defense counsel stated in his opening

statement:

AJudge, the evidence will show that the weapon that the

State is intending to introduce as the weapon included in the armed

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robbery was not loaded. *** [N]o bullets [were] found onCin the

gun or on Mr. McDonald or anywhere near his person. No

indication that this weapon was armed in any way in which he

could use it as a firearm.

Judge, at the end of the evidence, Judge, we=ll be asking

you to look at the facts and indicate that the aggravated robbery is

the proper charge in this case. That one usesBputs one out to be

armed in the process of the robbery.

Judge, we believe the statute was enacted directly for a

case of this kind, and we will be asking for a finding of not guilty

on the armed robbery at the end of the State=s case.@

In his argument for a directed finding following the State=s case, defense counsel

contended that the evidence was not sufficient to show armed robbery because the State failed to

show the gun was operable. Defense counsel also suggested that the State=s evidence showed

that defendant acted as if defendant had a weapon. Defense counsel again mentioned the charge

of aggravated robbery. After the State pointed out that the evidence showed that defendant did

have a weapon when he committed the robbery and that the State was not required to show that

the weapon was loaded or operable in order to establish the elements of armed robbery, the judge

denied the request for a directed finding.

Later, in closing arguments, defense counsel stated:

AJudge, the State=s burden is high. They have to prove

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every element of the offense beyond a reasonable doubt. Judge,

they have shown what they said has been done[;] however, there=s

been no testimony as to whether there was a actually a gun with

the ability to admit projectiles, whether it was loaded at the time,

whether it was capable of being used at the time of the robbery.

Judge, the statement itself says >it appeared to be a gun,=

and that=s exactly what the aggravated robbery statute is about,

whether somebody commits a robbery and acts as if they have a

weapon. They appear that they have a weapon. That=s the

testimony in this case. That=s the fit charge in this case. We are

asking for a finding of not guilty.@

The clear import of this argument to the trial court was a request for a finding of not

guilty on the armed robbery charge, and a further request by the defendant for a finding of a

lesser offense of aggravated robbery. The defense presented at trial was not an alibi, nor a case

of mistaken identity; rather, defense counsel suggested that the court find defendant guilty of a

something less than armed robbery. Moreover, defendant has never denied that this was a

circumstance of injected error, but argued in McDonald I that the sufficiency of the charging

instrument trumped any error injected into the trial by defendant. We disagree.

Defendant by his conduct injected the aggravated robbery charge into his first trial and

then acquiesced in this finding. Defendant made no objection before the trial court as to the

finding of aggravated robbery, even though defendant had the opportunity to do so at the close of

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his trial, in his motion for a new trial, and at his sentencing hearing. Defendant injected the error

into his trial by repeatedly suggesting that the court find him guilty of a lesser charge, and then

failed to object when the court followed defendant=s suggestion. Thus, the decision in

McDonald I was palpably erroneous because defendant injected the issue aggravated robbery

into his trial and, therefore, he was precluded from raising it on his initial appeal.

Additionally, the McDonald I court=s decision was palpably erroneous for considering

this issue as plain error. Supreme Court Rule 615(a) states that A[a]ny error, defect, irregularity,

or variance which does not affect substantial rights shall be disregarded. Plain errors or defects

affecting substantial rights may be noticed although they were not brought to the attention of the

trial court.@ 134 Ill. 2d R. 615(a).

Under the plain error rule, issues not properly preserved may be considered by a

reviewing court under two limited circumstances: (1) where the evidence is closely balanced, so

as to preclude argument that an innocent person was wrongfully convicted; or (2) where the

alleged error is so substantial that it affected the fundamental fairness of the proceeding and

remedying the error is necessary to preserve the integrity of the judicial process. People v.

Herron, 215 Ill. 2d 167, 178-79 (2005). In both instances, the burden of persuasion remains with

the defendant. Herron, 215 Ill. 2d at 187.

Defendant=s argument does not fit within either exception to the plain error rule. The

evidence was not closely balanced. Defendant was identified at trial by four witnesses who were

present at the Hollywood Grill during the robbery. Defendant=s claim on the insufficiency of the

charging instrument did not affect a substantial right because defendant suggested the trial court

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consider aggravated robbery and any issue of notice was, therefore, harmless. Schickel, 347 Ill.

App. 3d at 900. This claimed error did not affect the fundamental fairness of defendant=s trial,

and the McDonald I court=s decision to review it as plain error was palpably erroneous.

This conclusion does not conflict with the analysis in People v. Jones, 293 Ill. App. 3d

119 (1997), which the McDonald I court relied on in its decision. In Jones, the defendant alleged

that the trial court committed reversible error in refusing to give a jury instruction on aggravated

robbery as a lesser-included offense of armed robbery. Jones, 293 Ill. App. 3d at 126. The

reviewing court held that aggravated robbery can be considered a lesser-included offense only if

the charging instrument includes the necessary foundation for all elements of aggravated

robbery. Jones, 293 Ill. App. 3d at 128. The Jones court found that the trial court properly

refused to give this instruction because the charging instrument in that case failed to Aallege that

the gun was ever displayed to [the victim] or that the defendant implied to [the victim] that he

possessed a gun,@ a necessary element of aggravated robbery. Jones, 293 Ill. App. 3d at 129; see

also 720 ILCS 5/18-5 (West 1996).

The McDonald I court overlooked critical differences in the facts presented in the instant

case. Here, defense counsel explicitly told the trial court that the State=s evidence could not

support an armed robbery finding, but could support a finding of aggravated robbery, and the

court followed defense counsel=s request. Whereas, the Jones court found the trial court=s refusal

to give the instruction to be proper. Jones, 293 Ill. App. 3d at 129. The issue in Jones was

whether the refusal to give the instruction on aggravated robbery was error, and the reviewing

court in Jones was not asked to consider the question of invited error. Therefore, we find it is

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distinguishable from the present case.

We also find the facts in the present case to be distinguishable from those present in

People v. Kelley, 328 Ill. App. 3d 227 (2002). In Kelley, the defendant was charged with two

counts of armed robbery, but convicted of aggravated robbery. Kelley, 328 Ill. App. 3d at 228.

Following a bench trial, the trial court found A >that as to the weapon used, the State has not

proven that beyond a reasonable doubt, but as to the fact that property was taken from the victim

in this case, by force, I do and by threat of the use of a weapon, I find the defendant guilty of

aggravated robbery.= @ (Emphasis omitted.) Kelley, 328 Ill. App. 3d at 229-30. The Kelley court

relied on Jones and held that the defendant was improperly found guilty of an uncharged offense.

Kelley, 328 Ill. App. 3d at 232.

The facts in Kelley contain two key differences from the circumstances in the instant

case. The trial court in Kelley expressly found that the State had failed to prove the defendant

guilty of armed robbery, and the critical difference is that, unlike in the present case, the

defendant did not request consideration of aggravated robbery as a lesser-included offense. In

the instant case, the trial court never made such an express finding that the State failed to prove

defendant guilty of armed robbery. Additionally, the issue of invited error was not implicated in

Kelley because there the trial court unilaterally found the defendant guilty of the uncharged

lesser-included offense of aggravated robbery. Here, the circumstances presented are entirely

different because the trial court acted on the suggestion of defense counsel, and accordingly, an

error was invited by defendant.

Since we find that defendant was properly convicted of aggravated robbery in the first

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trial, the issue of double jeopardy is no longer implicated.

We hold that defendant was properly found guilty of aggravated robbery in his first trial.

We vacate the order of the trial court finding defendant guilty of armed robbery and his 45-year

sentence. Pursuant to our authority under Supreme Court Rule 615(b)(1) (134 Ill. 2d R.

615(b)(1)), we reinstate defendant=s conviction for aggravated robbery and 28-year sentence

imposed in the first trial.

In defendant=s petition for rehearing, he contends that this court lacks jurisdiction to

reinstate defendant=s aggravated robbery conviction from his first trial because his notice of

appeal only conferred jurisdiction for his second trial. However, defendant fails to point out that

the relief he is seeking, i.e., a finding of simple robbery based on the first trial, requires this court

to do the thing he insists we cannot do. It appears to defendant that this court can only revisit the

first trial if we grant him the relief he requested, but any deviation is a case of Ajudicial

prestidigitation.@ Such an argument is circular and without merit. Also, defendant=s reliance on

People v. Lyles, 217 Ill. 2d 210 (2005), and related cases is misplaced. In Lyles, the supreme

court held that the appellate court was procedurally barred from obtaining jurisdiction after the

21 days lapsed for filing a petition for rehearing. Lyles, 217 Ill. 2d at 217. That is not an issue

in this appeal. Rather, under the law of the case doctrine, we held that the decision in the first

appeal was clearly erroneous. Defendant=s argument on appeal was that the decision in the first

appeal was in error because it ordered a retrial. Our decision in the present case merely found a

different error than that complained of by defendant. Specifically, we have found that the

decision in the first appeal to remand for a new trial was error and that the aggravated robbery

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conviction should have been affirmed because defendant invited the error complained of.

Moreover, double jeopardy does not bar this court from reinstating defendant=s original

conviction for aggravated robbery.

Order vacated and the original finding of guilty of aggravated robbery and sentence is

reinstated.

GORDON and BURKE, JJ., concur.

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