dissenting:
I dissent. The majority opinion rests on the proposition that “this court has consistently held that it is necessary to allege and prove the prior felony conviction in order to establish the felony offense of unlawful use of weapons.” (104 Ill. 2d at 344.) This, in turn, rests on the theory that the prior conviction was an element of the offense which must be alleged in the indictment or information and proved. This theory will not withstand scrutiny. An examination of the authorities demonstrates that it is based on a misinterpretation of certain opinions dealing with the Habitual Criminal Act (Ill. Rev. Stat. 1955, ch. 38, par. 602).
As authority for its erroneous statement the majority cites and relies on People v. Dixon (1970), 46 Ill. 2d 502, People v. Owens (1967), 37 Ill. 2d 131, and People v. Ostrand (1966), 35 Ill. 2d 520. Dixon and Owens rely on Ostrand and need not be further discussed. In Ostrand, in discussing the contention that the circuit court erroneously admitted evidence of the prior conviction of a felony within five years of the date of the offense in question, the court said:
“Under such circumstances, it was not only proper to allow the allegation and proof of a prior felony conviction, but it was necessary in order to prove defendant’s commission of the felony of carrying a concealed weapon.” (35 Ill. 2d 520, 529.)
In support of this statement the Ostrand court cited People v. Booker (1966), 34 Ill. 2d 16. Booker presented only the issue of whether evidence of the prior crime was constitutionally permissible under the Habitual Criminal Act (Ill. Rev. Stat. 1955, ch. 38, par. 602) and did not involve the question whether a prior conviction was a necessary element of the offense. Booker contains dicta to the effect that, in order to apply the provisions of the Habitual Criminal Act to offenses committed before July 1, 1957, and impose the increased punishment, it was necessary for the indictment to charge conviction of a prior offense and to offer proof thereof. As authority for the dicta, Booker cites People v. Lamphear (1955), 6 Ill. 2d 346, and People v. Lawrence (1945), 390 Ill. 499.
People v. Lawrence involved the validity of the Habitual Criminal Act and provided that an individual who had been convicted of certain enumerated offenses, upon being subsequently convicted, was to be sentenced to specified terms “provided that such former conviction, or convictions, and judgment or judgments shall be set forth in apt words in the indictment” (Ill. Rev. Stat. 1955, ch. 38, par. 602).
In Lawrence the court cited People v. Atkinson (1941), 376 Ill. 624. In Atkinson the court said:
“The Habitual Criminal act does not create a new or independent crime. It merely prescribes circumstances wherein one found guilty of a specific crime may be more severely penalized because of a previous conviction. The punishment is for the new crime only, but the penalty is made heavier by statute because the defendant is an habitual criminal. The prior conviction is no ingredient of the main offense charged hut is merely a matter of aggravation going solely to the punishment to he imposed. (Emphasis added.)” (376 Ill. 624, 625.)
It clearly appears that the court specifically disclaimed that the prior conviction was an element of the later offense.
A recent decision of this court is consistent with Atkinson. In People v. Jackson (1984), 99 Ill. 2d 476, the defendant was indicted for theft for shoplifting clothing. She moved to have the allegations concerning the value of the stolen property stricken from the indictment. The motion was denied and defendant was convicted. The appellate court affirmed, holding that the value of the property stolen which determines whether the offense is a misdemeanor or a felony is a necessary element of the offense. This court, in affirming the conviction but vacating the felony penalty, stated:
“We believe the appellate court erred in holding that value is an essential element of the offense of theft (112 Ill. App. 3d 908, 912). Section 16 — 1 defines only one offense of theft. Variations of the factual circumstances under which control over property of the owner is obtained are enumerated in sections 16 — 1(a) through (d). Value of property taken is mentioned only in subsection (e), titled ‘sentence,’ which applies to all of the variations. Value determines only whether the theft will be punished as a felony or as a misdemeanor. Value has nothing to do with the decision whether a theft has occurred.” 99 Ill. 2d 476, 478-79.
Here, too, the statute creates only one offense, and whether defendants were released from the penitentiary or convicted of a felony within five years has nothing to do with the offense of unlawful use of weapons. The provision concerning the commission of the offense within five years of a prior felony conviction or release from the penitentiary is contained in a separate section of the statute (section 24 — 1(b)); it determines the sentence and not whether an unlawful use of weapons has occurred.
In People v. Lamphear (1955), 6 Ill. 2d 346, the court, in speaking of the practice of alleging and proving the prior conviction, said:
“In People v. Manning, 397 Ill. 358, this court did express misgiving as to the procedure established in section 602, stating at page 361: ‘It is conceivable that the introduction of such fact [the prior conviction] might influence a jury as to the character of the defendant and cause it to conclude that if he had been formerly convicted of a felony, there was a strong probability that he was guilty of the second offense. The requirements of the law as to the degree and character of proof required to establish the principal offense are not changed and the fact that evidence of the former conviction might create an adverse impression with the jury is not, in view of the requirements of the act, a denial of due process of law.’ It is reasonably apparent that the evidence of the prior conviction, properly related only to the matter of punishment, might affect the jury’s determination of guilt or innocence.” 6 Ill. 2d 346, 350.
At the time of the Lamphear decision the statute provided for enhancing certain sentences by reason of prior convictions “provided that such former conviction, or convictions, and judgment or judgments shall be set forth in apt words in the indictment.” Ill. Rev. Stat. 1955, ch. 38, par. 602.
The Illinois Habitual Criminal Act, approved April 11, 1957 (Ill. Rev. Stat. 1957, ch. 38, par. 603.1 et seq.), provided for similar enhancement. It also provided:
“(a) A former conviction of a felony shall not be alleged in the indictment, and no evidence or other disclosure of such conviction shall be presented to the court or the jury during the trial of the principal offense unless otherwise permitted by the issues properly raised in such trial. ***” (Ill. Rev. Stat. 1957, ch. 38, par. 603.3.)
It provided for a hearing before the court after a finding of guilty. The present Habitual Criminal Act (Ill. Rev. Stat. 1983, ch. 38, par. 33B—2) contains a similar provision and provides for a hearing following conviction in which the court determines the issue of prior conviction. There appears to be no reason why the same rule should not be applicable to the present situation.
The contention that the prior conviction becomes an element of the subsequent offense because it enhances the offense from a misdemeanor to a felony is untenable. The effect of the procedure approved by the majority opinion is to unduly prejudice a defendant charged with the offense of unlawful use of weapons. I would reverse the judgment of the appellate court and remand the cause to the circuit court for trial.
JUSTICE SIMON joins in this dissent.