People v. White, 2015 IL App (1st) 131111 (December 2015). Episode 126 (Duration 3:01)

Domestic battery is not a forcible felony that can support a conviction for armed habitual criminal. In Illinois a forcible felony can have significant sentencing consequences.

Defendant was convicted of being an armed habitual criminal and committing armed violence when he was stopped, dropped a gun, and had drugs on his person.

Forcible Felony In Illinois

In Illinois a forcible felony is defined like this,

provides that a…

“forcible felony means any other felony which involves the use or threat of physical force or violence against any individual.”

Section 2-8 of the Criminal Code of 2012

Because domestic battery is not expressly enumerated in subsection (2) or (3) of the armed habitual criminal statute, it must constitute a forcible felony under subsection (1) in order to be a qualifying felony under the statute. See Armed habitual Criminal statute 720 ILCS 5/24-1.7(a).

On First Blush

Here, the record must show that the specific circumstances of defendant’s domestic battery conviction fall under the residual clause or domestic battery must inherently be a forcible felony under the residual clause.

The State presented no evidence at trial concerning the circumstances surrounding defendant’s prior conviction. On first blush, a domestic battery where bodily harm has been causes appears to be a forcible felony.

Not All Batteries Are Forcible Felonies

However, in defining forcible felonies, the legislature has specified aggravated battery based on great bodily harm, permanent disability or disfigurement, to the exclusion of aggravated battery where mere “bodily harm” has occurred.

It cannot be said that defendant’s domestic battery conviction constituted a forcible felony. In turn, that conviction did not satisfy an element of the armed habitual criminal offense and defendant’s conviction for that offense must be vacated.

Armed Habitual Criminal Conviction Reversed

Additionally, the ambiguity in the armed violence statutes must be construed in defendant’s favor. The statute, then, does not authorize multiple armed violence convictions for multiple, simultaneous, underlying felonies. Accordingly, one of his armed violence convictions must be vacated.