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CRIMINAL LAW: CONCURRENT
AND CONSECUTIVE SENTENCING
In Illinois, when a defendant's conduct in a single transaction estab-

lishes the commission of several offenses, he may be prosecuted for each
separate offense.' The characterization of a single transaction as consti-
tuting multiple criminal offenses lies within the discretion of the state's at-
torney, and his decision is largely immune from judicial review. In many
cases, he can charge that the defendant violated several technical provi-
sions of the criminal code, each of which isolates and prohibits a specific
2
act in a given transaction. In other cases, he can charge that the defend-
ant violated several distinct statutes which, although apparently unrelated
to one another, overlap to effect a mutual proscription of the defendant's
3
actions. Paradoxically, however, it is unclear whether the defendant may
be convicted and sentenced for each offense charged. Thus, both the leg-
islature and the courts of Illinois have been confronted with the recurring
problems of when and how multiple punishments should be imposed.
The courts and the legislature have identified three situations in which
multiple punishments may not be imposed, although separate offenses may
be charged. 4 First, a defendant may not be convicted of both a "necessarily
included" offense and a greater offense (e.g., robbery and armed robbery,
or voluntary manslaughter and murder) because guilt of the greater offense
necessarily implies guilt of the lesser offense. 5 Second, a defendant may
1. ILL. REV. STAT. ch. 38, § 3-3(a) (1971) [hereinafter all references to the
Illinois Criminal Code are by section number only]. The prosecutor is not required
to elect the charge on which he will seek conviction. People v. Brown, 52 I11. 2d
94, 103, 285 N.E.2d 1, 7 (1972).
2. By filing multiple charges, the prosecutor is not necessarily making a claim of
enhanced criminality. Sections 3 and 4 require him to file multiple count indictments
for crimes arising in a single transaction. Furthermore, these multiple charges may
be used to meet contingencies in the proof or to encourage a defendant to plead
guilty to one or more of the counts. Remington & Joseph, Charging, Convicting, and
Sentencing the Multiple Offender, 1961 Wis. L. REv. 528, 545.
3. Suppose a defendant assaulted a young girl with a knife, forced her into his
car, drove to a secluded area, and then raped her. He could. conceivably be charged
with assault, aggravated assault, battery, aggravated battery, kidnapping, rape, taking
indecent liberties with a child, contributing to the sexual delinquency of a child, and
illegal use of a weapon.
4. At common law, criminal statutes were relatively few and distinct. A single
course of criminal conduct was likely to yield but a single offense. Today, however,
criminal provisions are necessarily written in an abstract and general manner. It is
difficult to cover the numerous and varied factual situations that may arise within
statutes that apply to only limited aspects of a defendant's behavior. Therefore, a
great variety of acts which possess certain common characteristics are categorized into
one statutorily created offense. Because of this distinction between a general statutory
definition and a particular act, it is possible to fit a single act into more than one of-
fense category. Kirchheimer, The Act, the Offense and Double Jeopardy, 58 YALE L.J.
513, 514 (1949). Therefore, in order to assure that the proliferation of criminal pro-
visions will not inflict a punishment upon the defendant beyond that intended by the
legislature, it is necessary to place limitations upon the discretion of the courts in
imposing multiple punishments.
5. See, e.g., People v. Hoffman, 9 Ill. App. 3d 842, 293 N.E.2d 16 (4th Dist.
1973) (defendant could not be convicted of both battery and aggravated battery for a
single beating).
LAW FORUM [Vol. 1973
not be convicted of both an inchoate and a principal offense (e.g., attempted

murder and murder when there has been only one completed killing). 6
Third, if a statute proscribes a continuing course of conduct rather than iso-
lated acts, there may be only one conviction for that conduct as long as it is
uninterrupted (e.g., a defendant who performs several protest acts at rela-
tively close times and places may be punished only once for a disorderly
conduct violation).7
In each of these situations, the charged offenses are related by defini-
tion and, properly, should not be separated to support multiple punishments.
A more difficult situation arises when a defendant is charged with and con-
victed of offenses which are not necessarily related but arise from one trans-
action.8 In such a case, the trial judge is required to examine the factual
basis for each charge to determine whether he may impose multiple sen-
tences upon the defendant. Trial judges, however, have not received any
clear guidelines from either the legislature or the appellate courts to aid
them in making this determination.
The Illinois Legislature has sought to remedy this problem in section
1005-8-4 of the Unified Code of Corrections 9 which became effective on
January 1, 1973. In relevant part, the code provides:
(a) When multiple sentences of imprisonment are imposed on a de-
fendant at the same time, . . . the sentences shall run concurrently or
consecutively as determined by the court. The court shall not impose
consecutive sentences for offenses which were committed as part of
a single course of conduct during which there was no substantial change
6. See, e.g., People v. Green, 130 Ill. App. 2d 609, 265 N.E.2d 184 (2d Dist.
1970) (defendant could not be convicted of both taking indecent liberties with a child
and of an attempt to take indecent liberties with a child). Attempt, conspiracy, and
solicitation are inchoate offenses in Illinois. §§ 8-1, 8-2, 8-4. Some jurisdictions,
however, allow convictions for both conspiracy and the completed offense because a
group is more dangerous and difficult to apprehend than an individual. Also, a group
is more likely to plan further crimes unrelated to the original purpose for which the
group was formed. Johnson, Multiple Punishments and Consecutive Sentences: Re-
flections on the Neal Doctrine, 58 CALIF. L. Rnv. 357, 358 (1970). See Callanan v.
United States, 364 U.S. 587 (1961).
7. See, e.g., Yates v. United States, 355 U.S. 66 (1957) (refusing to answer 11
questions during a trial cross-examination could lead to only one conviction for crimi-
nal contempt); United States v. Universal C.I.T. Credit Corp., 344 U.S. 218 (1952)
(several violations of the minimum wage, overtime, and record-keeping provisions of
the Fair Labor Standards Act during 1 week were not separate offenses). The courts
must determine whether a legislature intended to proscribe a continuing course of
conduct, rather than individual violations of a statute. Remington & Joseph, supra
note 2, at 548.
8. This situation arises whenever the combined charges do not indicate that the
offenses arose from the same conduct. Typical examples include multiple charges of
rape and battery, theft and battery, or disorderly conduct and resisting arrest.
9. ILL. REv. STAT. ch. 38, §§ 1001-1-1 to 1008-6-1 (Supp. 1972) [hereinafter
reference to the Corrections Code will be by section number only]. The Unified
Code of Corrections covers procedures for the sentencing, rehabilitation, and parole of
criminal offenders. The purposes of the code are: (1) to prescribe sanctions propor-
tionate to the seriousness of the offenses, (2) to recognize differences in the re-
habilitation possibilities among individual offenders, (3) to forbid and prevent the
commission of offenses, (4) to prevent arbitrary and oppressive treatment of persons
adjudicated to be offenders or delinquents, and (5) to restore offenders to useful citi-
zenship. § 1001-1-2. The unified code, however, does not affect any offense com-
mitted, prosecution begun, or penalty incurred prior to Jan. 1, 1973. § 1008-2-1.
No. 3] CONCURRENT AND CONSECUTIVE SENTENCING 425
in the nature of the criminal objective. Sentences shall run concur-

rently unless otherwise specified by the court.
(b) The court shall not impose a consecutive sentence unless, having
regard to the nature and circumstances of the offense and the history
and character of the defendant, it is of the opinion that such a term is
required to protect the public from further criminal conduct by the
defendant, the basis for which the court may set forth in the record. 10
The lack of clear guidelines prior to the passage of this new statute resulted
from the courts' confusing application of section 1005-8-4's predecessor in
the criminal code, section 1-7(m). Thus, to determine the exact meaning
and import of section 1005-8-4, it will be necessary to examine section
1-7(m) and the judicial interpretations of that provision. Section 1-7(m)
provided that "when a person shall have been convicted of 2 or more of-
fenses which did not result from the same conduct, . . . the court in its
discretion may order that the term of imprisonment upon any one of the
convictions may commence at the expiration of the term of imprisonment
upon any other of the offenses.""
The courts adopted various approaches to the problem of multiple pun-
ishments under section 1-7(m) and, as a result, handed down inconsistent
decisions. As many as three different tests were applied by the courts to
determine when multiple offenses arose from the "same conduct": the
"single act" test, the "same evidence" test, and the "independent motiva-
tion" test. The courts supplemented each test with a "multiple victim"
rule which generally allowed the imposition of multiple punishments if the de-
fendant had committed offenses involving more than one victim. Further-
more, with little dissent, the courts prohibited concurrent sentences for of-
fenses arising from the "same conduct" under section 1-7(m) despite the
lack of specific statutory language to that effect. The question whether the
old statute prohibited multiple judgments of conviction for offenses arising
from the "same conduct" also became an area of controversy.
Armed with a new statute free of precedent, the Illinois courts now have
an opportunity to resolve the two problems that arose under section 1-7(m):
(1) to adopt a uniform test that will determine whether multiple offenses
were committed "as part of a single course of conduct during which there
was no substantial change in the nature of the [defendant's] criminal ob-
jective,' 1 2 and (2) to decide whether the harmful effects resulting from
concurrent sentences and multiple convictions should also be proscribed.
The possible court approaches are suggested by a consideration of the case
law developed by section 1-7(m).
Under section 1-7(m), Illinois courts failed to adopt a uniform test to
determine the meaning of offenses arising from the "same conduct." The
committee comments to that section offered little assistance. The comments
stated that the term "same conduct" in the statute was used in the same
sense in which the court in People v. Schlenger13 had used the term "same
transaction.' 4 In Schlenger, the Supreme Court of Illinois held that armed
robbery and grand larceny arose out of the "same transaction" because both
10. §§ 1005-8-4(a), (b).

11. § 1-7(m) (repealed by § 1005-8-4).
12. § 1005-84(a).
2d 63, 147 N.E.2d 316 (1958).
13. 13 Ill.
14. ILL. ANN. STAT. ch. 38, § 1-7, committee comments, at 37 (Smith-Hurd
1972).
charges "pertained to the same taking of the same amount of money from
the same person on the same date."' 15 Therefore, the court imposed only
one sentence for the two offenses. On the basis of this language, the courts
could have interpreted section 1-7(m) to prohibit multiple sentences only
where the offenses arose from the same physical act. They did not, how-
ever, adopt this narrow interpretation of Schlenger. As a general rule, they
also did not utilize a broad definition of the term "same transaction" in or-
der to prohibit multiple sentences for offenses which arose at or near the
same place and time. 16
Instead, the courts relied upon three different tests,
each of which concentrated on a different element of the offenses involved
to determine whether they arose out of the "same conduct."
The courts first adopted the "single act" test. This test focused on
whether the acts constituting the offenses were separable and distinct. If
the acts were separable and distinct, a sentence could be imposed for each
offense committed. Under this test, the courts uniformly held that when
the same physical act by a defendant supported more than one offense, he
could be properly sentenced only for the more serious offense. For example,
when a defendant committed both rape and incest 17 or rape and taking
indecent liberties with a child l8 by committing only one act of unlawful
sexual intercourse, he could be punished only for rape. Similarly, when
charges of burglary and theft, 19 burglary and grand larceny, 20 or armed rob-
bery and theft 2 ' rested on a common act of unlawful taking, a defendant
could be sentenced only for the more serious of the two offenses (burglary
or armed robbery). Similarly, a defendant could not be punished twice
15. 13 Ill. 2d at 64, 147 N.E.2d at 317.

16. One court, however, did adopt a broad definition of the term "same transac-
tion." In People v. Ritchie, 66 Ill. App. 2d 302, 213 N.E.2d 651 (4th Dist.), aff'd on
other grounds, 36 Ill.2d 392, 222 N.E.2d 479 (1966), the defendant broke into a
trailer and raped its female occupant. The appellate court held that because the rape
and burglary arose in the "same transaction," the defendant could only be sentenced for
the greater offense of rape. Although the state filed a petition for leave to cross
appeal from this judgment and "convincingly argued" that the defendant committed two
separate acts, the supreme court found that this question was not properly before it for
review. See ILL. REV. STAT. ch. lI0A, § 604 (1971); id. ch. 38, § 114-1. The ap-
pellate court decision, however, was criticized in subsequent cases. See, e.g., People
v. Johnson, 44 Ill. 2d 463, 256 N.E.2d 343,'.cert. denied, 400 U.S. 958 (1970); People
v. Raby, 40 ll. 2d 392, 240 N.E.2d 595 (1968); People v. Ritchie, 36 Ill. 2d 392,
222 N.E.2d 479 (1966); People v. Weaver, 93 Ill. App. 2d 311, 236 N.E.2d 362 (1st
Dist. 1968).
17. People v. Duszkewycz, 27 Ill. 2d 257, 189 N.E.2d 299 (1963).
18. People v. Brown, 52 Ill. 2d 94, 285 N.E.2d 1 (1972); People v. Thomas,
130 Ill. App. 2d 1107, 266 N.E.2d 721 (1st Dist. 1970); People v. Garcia, 86 Ill.
App. 2d 80, 230 N.E.2d 289 (1st Dist. 1967); People v. Ruiz, 82 Ill. App. 2d 184,
226 N.E.2d 438 (1st Dist. 1967); accord, People v. Pardue, 6 Ill. App. 3d 430,
286 N.E.2d 29 (1st Dist. 1972) (defendant convicted of rape, taking indecent liber-
ties with a child, and contributing to the sexual delinquency of a child sentenced only
for rape).
19. People v. Stevenson, 107 Ill. App. 2d 441, 246 N.E.2d 309 (2d Dist. 1969);
cf. People v. Torello, 109 Il. App. 2d 433, 248 N.E.2d 725 (1st Dist. 1969), cert.
denied, 397 U.S. 972 (1970) (only one sentence could be imposed for automobile
theft and criminal trespass to a car because both offenses were committed with one
act).
20. People v. Squires, 27 Ill. 2d 518, 190 N.E.2d 361, cert. denied, 375 U.S. 978
(1963); cfi. People v. Schlenger, 13 Ill. 2d 63, 147 N.E.2d 316 (1958) (armed robbery
and grand larceny).
21. People v. Watson, 110 Ill. App. 2d 343, 249 N.E.2d 293 (1st Dist. 1969).
for interfering with an institution of higher learning and trespassing on

state supported. land, 22 disorderly conduct and obstructing traffic, 23 or dis-
orderly conduct and resisting arrest 24 when the same protest conduct by
the defendant was used to prove each pair of violations.
The Illinois courts, however, were reluctant to apply the "single act" test
when several offenses were committed during the single act of driving a
motor vehicle. In People v. Harvey,25 a defendant was punished separately
for involuntary manslaughter, driving while his license was revoked, leaving
the scene of an accident, and failing to report an accident within 48 hours of
its occurrence. The court found that driving without a license was a con-
tinuous offense separate from the involuntary manslaughter charge. 26 The
offense of leaving the scene of an accident could not be committed until
all the acts upon which the charge of involuntary manslaughter rested were
complete, and the offense of failing to report an accident was not complete
until 48 hours had passed from the time of its occurrence. 27 The court in
People v. Mundorf28 found that the single act of driving in and of itself
was not a common factor in the offenses of driving while under the influ-
ence of alcohol and driving after one's license had been suspended because
driving, by itself, was not an unlawful act. Only the additional independent
elements of intoxication and license suspension made the act illegal. There-
fore, the separate acts supported consecutive sentences.
When several acts were performed during the same course of conduct,
the courts faced a problem not occurring in cases involving a single act.
They had to decide to what extent an incident of physical conduct should
be divided into its component parts to find separable offenses under the
"single act" test. Marked divisions in a defendant's course of conduct al-
lowed the courts to find that section 1-7(m) did not apply and to impose
consecutive or concurrent sentences for the offenses committed. For in-
stance, if a defendant committed rape either before or after he committed
robbery, 29 kidnapping, 30 burglary, 3 ' theft, 32 attempted murder 33 or deviate
22. People v. Barnett, 7 Ill. App. 3d 185, 287 N.E.2d 247 (1st Dist. 1972).
23. City of Chicago v. Hill, 40 Ill. 2d 130, 238 N.E.2d 403 (1968).
24. Compare People v. Sullivan, 46 Ill. 2d 399, 263 N.E.2d 38 (1970) (disorderly
conduct and resisting arrest charges based on the act of protesting a policeman's
search of defendant's car), with People v. Raby, 40 Ill. 2d 392, 240 N.E.2d 595 (1968)
(separate acts found when a defendant blocked an intersection in protest and then
resisted arrest).
25. 5 Ill. App. 3d 499, 285 N.E.2d 179 (1st Dist. 1972). Accord, People v.
Adams, 113 Ill. App. 2d 276, 252 N.E.2d 65 (1st Dist. 1969).
26. Accord, People v. Limague, 89 Ill. App. 2d 307, 231 N.E.2d 599 (4th Dist.
1967) (reckless homicide and driving with a revoked license held to be separate of-
fenses). The court found that although both offenses arose from the same act of
driving, the elements of each offense were separate and unrelated.
27. Contra, People v. Johnson, 79 Ill. App. 2d 226, 223 N.E.2d 860 (2d Dist.
1967) (defendant could not be sentenced for both leaving the scene of an accident
and failing to report an accident within 48 hours of its occurrence).
28. 97 I1. App. 2d 130, 239 N.E.2d 690 (2d Dist. 1968).
29. People v. Moore, 51 Ill. 2d 79, 281 N.E.2d 294 (1972); People v. Walker,
2 111. App. 3d 1026, 279 N.E.2d 23 (1st Dist. 1971).
30. People v. Pearson, 52 Ill. 24 260, 287 N.E.2d 715 (1972); People v. Weaver,
8 Ill. App. 3d 299, 290 N.E.2d 691 (1st Dist. 1972); People v. Jones, 6 Ill. App. 3d 669,
286 N.E.2d 87 (5th Dist. 1972); People v. Pardue, 6 Ill. App. 3d 430, 286 N.E.2d 29
(1st Dist. 1972).
31. People v. Moore, 51 Ill. 2d 79, 281 N.E.2d 294 (1972); People v. Weaver,
93 Il. App. 2d 311, 236 N.E.2d 362 (1st Dist. 1968).
sexual assault 4 on the same victim, he could be sentenced for both offenses.
The conduct required to commit each offense was separate and distinct
from the conduct required to commit rape.
When force was an element of both offenses charged, the conduct re-
quired to support separate punishments for each offense was not as easily
divisible into separate acts. In these cases, the courts relied upon the
chronology of a defendant's actions to find divisibility. Thus, if the conduct
supporting an aggravated battery
35 3 6conduct used to prove
charge was the same 37
the force required for robbery, attempted murder, or armed violence,
no sentence for aggravated battery was imposed. But when the force used
to establish aggravated battery occurred after an armed robbery 33 or bur-
32. People v. Pearson, 52 Ill. 2d 260, 287 N.E.2d 715 (1972); People v. Weaver,
8 Ill. App. 3d 299, 290 N.E.2d 691 (1st Dist. 1972).
33. People v. Gersbacher, 102 Ill. App. 2d 165, 242 N.E.2d 277 (5th Dist. 1968),
aff'd on other grounds, 44 Ill. 2d 321, 255 N.E.2d 429 (1970). See also People v.
Walker, 2 111. App. 3d 1026, 279 N.E.2d 23 (1971).
34. People v. Moore, 51 Ill. 2d 79, 281 N.E.2d 294 (1972); People v. Scott,
43 Ill. 2d 135, 251 N.E.2d 190 (1969); People v. Thomas, 130 Ill. App. 2d 1107, 266
N.E.2d 721 (1st Dist. 1970); cf. People v. Oldsby, 119, Ill. App. 2d 412, 256 N.E.2d
27 (1st Dist. 1970) (attempted rape and deviate sexual assault held to be separate
and distinct acts). But see People v. Cox, 53 Ill. 2d 101, 291 N.E.2d 1 (1972). In
that case, the defendant pleaded guilty to two counts of taking indecent liberties with a
child. The defendant had committed an act of sexual intercourse and an act of deviate
sexual assault, both of which violated separate provisions of the indecent liberties
statute. § 11-4(a)(1)-(2). The court held that although the defendant had com-
mitted two separate acts, the acts violated only one statute, involved a single victim,
and were almost simultaneous in time. Therefore, only one conviction and sentence
should be imposed. The court in Cox relied on Castle v. United States, 368 U.S. 13
(1961) (per curiam) (only one sentence could be imposed for the unlawful transpor-
tation of five forged money orders), and Bell v. United States, 349 U.S. 81 (1955)
(discussed in text accompanying note 84 infra). The Illinois court applied the
lenity policy of these decisions to hold that in the absence of a statutory provision to
the contrary, the conduct in Cox constituted a single offense.
35. People v. Smith, 8 Ill. App. 3d 270, 290 N.E.2d 261 (1st Dist. 1972)
(defendant drew a gun and pistol whipped a store proprietor to get a cache of
money); People v. Randolph, 4 Ill. App. 3d 277, 280 N.E.2d 774 (1st Dist. 1972)
(beating of victim prior to robbery was the force that made the taking of the money
robbery rather than theft); People v. Miller, 2 Il. App. 3d 206, 276 N.E.2d 395
(1st Dist. 1971) (force used by defendant was that used to effectuate armed robbery);
People v. Baker, 114 Ill. App. 2d 450, 252 N.E.2d 693 (1st Dist. 1969) (initial striking
of victim by defendant followed by the use of a knife, constituted the force that was
an element of armed robbery); People v. Durant, 105 Ill. App. 2d 216, 245 N.E.2d 41
(1st Dist. 1969) (defendant beat the victim before taking his wallet). Contra,
People v. Mitchell, 101 Il. App. 2d 380, 243 N.E.2d 358 (1st Dist. 1968) (although
defendant knocked down the victim three times before taking his money, the court held
that the offense of aggravated battery did not include the actual taking of money and
imposed separate sentences); cf. People v. McKinney, 126 Ill. App. 2d 196, 261
N.E.2d 462 (1st Dist. 1970) (defendant who fired four shots and struck owner of
tavern before he grabbed money on the bar committed separate offenses of at-
tempted robbery and aggravated battery).
36. People ex rel. Walker v. Pate, 53 Ill. 2d 485, 292 N.E.2d 387 (1973);
People v. Thompson, 3 Ill. App. 3d 684, 278 N.E.2d 1 (1st Dist. 1972); People v.
Peery, 81 Ill. App. 2d 372, 225 N.E.2d 730 (1st Dist. 1967). In each of these cases,
the aggravated battery and attempted murder charges arose from a single act of ag-
gression on the victim-either a shooting incident or a severe beating.
37. People v. Brown, 1 Ill. App. 3d 571, 275 N.E.2d 163 (1st Dist. 1971) (de-
fendant attacked a police officer with a knife and pipe).
38. People v. Holt, 7 Ill. App. 3d 646, 288 N.E.2d 245 (3d Dist. 1972) (defend-
glary3 9 had already been completed, separate sentences were imposed. Sim-
ilarly, when a defendant shot a store manager after attempting to rob his
store, concurrent sentences were imposed for attempted murder and at-
tempted armed robbery. The demand for money at gun point40constituted
one offense; the firing of the gun constituted the other offense. The Su-
preme Court of Illinois has held, however, that only one sentence could be
imposed on a defendant who shot his victim when that victim resisted 41 a
robbery attempt because both offenses arose from the "same conduct."
Several criticisms can be asserted against the "single act" test. First,
the test often yields harsh results when applied to certain factual situations.
Consider the cases in which force had to be established as an element of
both offenses committed. Arguably, the chronology of a defendant's actions
in those cases should not have been the sole criterion for measuring the de-
fendant's criminal culpability. The robber who beat his victim after taking
his money was not necessarily more culpable than the one who beat his vic-
tim before taking his money. A better distinction might be drawn between
a robber who used only as much force as was necessary to complete the
robbery, and the one who employed additional force out of disinterested
malice. But even then, the key question is not when the beating was in-
flicted, but why. 42 Second, the "single act" test allows a court wide dis-
cretion in either joining or severing a variety of actions as a "single act."
Under this test, one court can find that the applicable unit of behavior is a
singular muscular contraction; while another court can go to the other ex-
treme and find that an entire criminal transaction constitutes a "single act."
Neither of these interpretations was or is envisaged by sections 1-7(m) or
1005-8-4. Few if any crimes are the result of a single physical act; offenses
committed during a single criminal transaction are often based on conduct
by a defendant which is not the same, but rather divisible into separate and
distinct acts.
To avoid the undue harshness and the discretionary interpretations of
the "single act" test, Illinois courts need to reconsider the statutory language
of sections 1-7(m) and 1005-8-4. Section 1-7(m) establishes the defend-
ant robbed victims while they were lying on the restaurant floor and then brutally
beat them); People v. Johnson, 3 Ill. App. 3d 19, 278 N.E.2d 837 (lst Dist. 1971)
(defendant took victim's money and then scuffled with him when the victim attempted
to flee); People v. Gilyard, 124 Ill. App. 2d 95, 260 N.E.2d 364 (Ist Dist. 1970),
cert. denied, 402 U.S. 911 (1971) (robbery was completed when the defendant
knocked a gun from the pharmacist's hand; the subsequent beating of the pharmacist
was a separate offense); People v. Gates, 123 Ill. App. 2d 50, 259 N.E.2d 631 (1st
Dist. 1970) (robbery completed before the stabbing); People v. Baker, 114 Ill. App. 2d
450, 252 N.E.2d 693 (1st Dist. 1969) (defendant kicked the victim in the head after
taking his watch). Contra, People v. Boyd, 105 111. App. 2d 345, 245 N.E.2d 587
(1st Dist. 1969) (defendant beat victim after refusal to give the defendant money, but
the court imposed only one sentence on the defendant).
39. People ex rel. Evans v. Twomey, 52 Ill. 2d 299, 287 N.E.2d 661 (1972) (de-
fendant unlawfully entered an educational center connected to a convent and when
discovered, beat his victim with a broom handle).
40. People v. Thompson, 3 Ill. App. 3d 684, 278 N.E.2d 1 (1st Dist. 1972);
People v. Hickman, 3 Ill. App. 3d 919, 280 N.E.2d 787 (2d Dist. 1971); accord,
People v. Toliver, 133 Ill. App. 2d 266, 273 N.E.2d 274 (1st Dist. 1971) (murder of
bartender after attempted robbery of tavern).
41. People v. Prim, 53 Ill. 2d 62, 289 N.E.2d 601 (1972) (attempted armed
robbery and murder constituted a single act because defendant shot the victim while she
was resisting theft of her purse).
42. Johnson, supra note 6, at 365 n.29.
430 LAW FORUM [Vol. 1973
ant's "same conduct" as the unit of criminal liability. Section 1005-8-4 re-
fers to a "single course of conduct." Conduct, as defined in the criminal
code, includes not only an act or series of acts, but also the mental states
which accompany these acts. 43 Thus, if the courts wish to apply the "single
act" test to the new section, more uniform and just interpretations would
result if divisibility of a defendant's conduct depends on both the existence
of separate and distinct acts and separate motivations behind those acts.
Dissatisfaction with the "single act" test prompted Illinois courts to de-
velop a second test, the "same evidence" test.4 4 This test focused on the
legal definitions of the crimes charged, and not on the conduct upon which
the offenses were predicated. If different elements of proof were required
for each charge and each of these elements could be proved from the facts
of a particular case, then the defendant could be sentenced either concur-
rently or consecutively for each offense. It is unclear whether the facts must
independently establish the elements of each offense, or4 5whether identical
evidence may be used to prove the elements of each charge.
43. As defined in the criminal code, an act includes a failure or omission to take
action. § 2-2. Conduct is defined as an act or a series of acts, and the accom-
panying mental states. § 2-4. A mental state is the intent, knowledge, recklessness,
or negligence with which a person acts in the commission of an offense. H84-4 to 4-8.
44. The United States Supreme Court has adopted the "same evidence" test for
reviewing double jeopardy cases. See, e.g., Blockburger v. United States, 284 U.S. 299
(1932) (defendant could be punished twice for violating two sections of the nar-
cotics act with one sale of drugs because each section required proof of a fact that the
other did not); Ebeling v. Morgan, 237 U.S. 625 (1915) (cutting several mailbags in
one transaction constituted several offenses because the statute prohibited cutting one
mailbag with a felonious intent). Justice Brennan, however, has recently criticized
the Supreme Court's use of the "same evidence" test in double jeopardy cases:
Given the tendency of modem criminal legislation to divide the phases of a crimi-
nal transaction into numerous separate crimes, the opportunities for multiple
prosecutions for an essentially unitary criminal episode are frightening. And
given our tradition of virtually unreviewable prosecutorial discretion concerning
the initiation and scope of a criminal prosecution, the possibilities of abuse
inherent in the "same evidence" test are simply intolerable.
Ashe v. Swenson, 397 U.S. 436, 452 (1970) (concurring opinion). He favored adopt-
ing the "same transaction" test, which is followed in a minority of jurisdictions.
See H8 3-3, 3-4 applied in People v. Golson, 32 Ill. 2d 398, 207 N.E.2d 68 (1965),
cert. denied, 384 U.S. 1023 (1966) (defendant who killed two postal employees in one
course of conduct could be subjected to only one trial). See also People v. Perry,
47 Ill. 2d 402, 266 N.E.2d 330 (1971) (court rejected the defendant's argument that
two convictions for offenses arising from the same transaction violated the double jeo-
pardy clause).
The very fact that the "same evidence" test is often used to protect defendants
from multiple trials is an argument against using the test to protect defendants from
multiple punishments. The rule against multiple prosecutions protects a defendant
from the harrassment, threat, and expense of repeated trials. Protection from multiple
punishments insures that a defendant's punishment will be commensurate with his cul-
pability. "Thus conduct which is divisible for purposes of punishment is often unitary
for purposes of prosecution." Note, Multiple Prosecution and Punishment of Unitary
Criminal Conduct-Minn. Stat. § 609.035, 56 MINN. L. REv. 646, 652 (1972).
45. Even when the same factual evidence is offered to prove two offenses, a
court will often point out that the separate counts contain different words or refer to
different statutes; hypothetically, each count could be violated separately. See, e.g.,
United States v. Michener, 331 U.S. 789 (1947) (per curiam) (possible to procure
counterfeiting plates for manufacture without possessing them); Morgan v. Devine,
237 U.S. 632 (1915) (possible to burglariously enter a post office without stealing
property upon entry); Burton v. United States, 202 U.S. 344 (1906) (possible to re-
The Supreme Court of Illinois has relied on the "same evidence" test
in decisions involving burglary and rape 46 and robbery and rape. 4 7 Al-
though the court could have found these offenses separate and distinct under
the "single act" test because the defendant embarked on a course of conduct
in making his sexual assault different from that conduct which constituted
the burglary and robbery charges, the court decided that these offenses were
capable of supporting separate punishments because each required different
elements of proof. The occurrence of one crime was not necessarily de-
pendent upon or connected with the other.
Although the supreme court has not applied the "same evidence" test
in any subsequent decisions, some appellate courts have adopted Chief Jus-
tice Underwood's version of the test-the "additional factor" test. The
courts reason that a series of acts should be treated as a single act until an
additional factor which is an essential element of a separate offense is intro-
duced. When separate offenses have been proved, multiple punishments
can be imposed. 48 In People v. Jones,49 the court found that aggravated
kidnapping followed by the sexual assault of a young girl were separate and
distinct crimes because they required different elements of proof. In People
v. Ike, 50 the court, using the "additional factor" test, imposed separate sen-
tences for armed robbery and attempted murder. The defendant in that
case had demanded money from a store clerk and then shot her when she
reached to get a bag for the money. The court found that the robbery was
completed when the defendant flourished his gun and demanded the money.
When the defendant discharged the gun and injured the clerk, an additional
element was introduced essential to prove attempted murder, but not to
prove robbery. 5 1 Similarly, in People v. Garry,52 the arrival of a police
ceive an illegal bribe without agreeing to it). The Supreme Court of Illinois held, in
People v. Duszkewycz, 27 Ill. 2d 257, 189 N.E.2d 299 (1963), however, that two
punishments could not be imposed on a defendant for a single act of sexual inter-
course with his 10-year old daughter. Although this single act established the com-
mission of rape and incest, each of which required different elements of proof (force
and lack of consent for rape, and a certain relationship between the parties for in-
cest), the defendant had committed only one wrongful act and should only be pun-
ished once for it.
46. People v. Johnson, 44 Ill. 2d 463, 256 N.E.2d 343, cert. denied, 400 U.S. 958
(1970) (defendant broke into a woman's apartment and then raped her).
47. People v. Harper, 50 Ill. 2d 296, 278 N.E.2d 771 (1972) (defendant raped
his victim and then took her money and jewelry).
48. Chief Justice Underwood favored applying the "same evidence" test in People
v. Whittington, 46 11. 2d 405, 265 N.E.2d 679 (1970), but rephrased the test in this
manner:
A series of acts should be treated as a single act until an additional factor is
introduced which was previously absent, and which is an essential element neces-
sary for the proof of a separate offense. That is, when more than one act and
more than one offense are involved, and proof of the separate offense requires
proof of at least one additional essential element, which was not in existence at
the time of the first offense, then the offenses are separable and convictions may
be had and sentences imposed on both.
id. at 414, 265 N.E.2d at 684 (dissenting opinion).
49. 6 ill. App. 3d 669, 286 N.E.2d 87 (5th Dist. 1972).
50. 7 Ill. App. 3d 75, 286 N.E.2d 391 (5th Dist. 1972).
51. The defendant argued that because robbery was his sole objective, any other
crime committed in the course of accomplishing that objective merged into the of-
fense of robbery. The court rejected this argument for applying the "independent
motivation" test because it would allow a defendant to avoid accountability for an
offense perpetrated in the process of committing another. This would be an irrational
officer upon the scene of an attempted robbery presented an additional factor

which resulted in attempted murder, a crime which requires proof of at least 53
one additional element, the intent to kill. Finally, in People v. Mitchell,
an appellate court relied on the "additional factor" test to find that the of-
fenses of aggravated battery and robbery were separable. In order to dis-
tinguish the offenses, the court relied on the taking of money, an element
necessary for proving robbery but not for proving aggravated battery.
The "same evidence" test may also be criticized for its method of
measuring a defendant's culpability in situations where multiple offenses
arise during a single course of conduct. The possible unfairness which re-
sults from a mechanical application of this test can best be seen in Gore v.
United States.5 4 The defendant in that case violated three federal statutes
in making one sale of narcotics. These statutes proscribed the sale of nar-
cotics without the appropriate Treasury order forms, the sale of narcotics out-
side of its originally stamped package, and the sale of narcotics known by
the seller to have been illegally imported. 55 Because each violation required
proof of a fact not required by either of the other two, the imposition of
consecutive sentences for the three violations was upheld. It was possible,
in other words, to commit any one of these offenses without committing either
of the other two. 56
Gore is a good example of the unfairness which results in applying the
"same evidence" test to factual situations involving one act. When one act
results in two simultaneous violations of one statute, only one punishment
for that act can be imposed because the same proof is required to prove
each violation of the same statute. But when one act violates two different
statutes, two punishments for that act can be imposed because different
evidence is required to prove the violations of the different statutes. For
instance, a single taking of an automobile could result in two punishments
being imposed under the "same evidence" test because different evidence
result. Id. at 81, 286 N.E.2d at 395. See text accompanying notes 61-74 infra for a
discussion of the "independent motivation" test.
52. 131 Ill. App. 2d 715, 268 N.E.2d 568 (3d Dist. 1971).
53. 101 Ill. App. 2d 380, 243 N.E.2d 358 (1st Dist. 1968). Under the "single
act" test, these crimes would constitute only one offense because the same forcible
conduct was used to establish both offenses.
54. 357 U.S. 386 (1958); accord, Torres Martinez v. United States, 220 F.2d 740
(1st Cir. 1955) (an ingenious prosecutor fashioned 13 counts out of a single nar-
cotics sale, and separate sentences were upheld on all counts). See also Johnson v.
Commonwealth, 201 Ky. 314, 256 S.W. 388 (1923) (each one of 75 poker hands
was held to constitute a separate offense under the "same evidence" test).
55. See 26 U.S.C. §§ 4704(a), 4705(a); 21 U.S.C. § 174 (repealed by Pub. L.
No. 91-513, §§ 1101(a)(2), (4), (b)(3)(A) (Oct. 27, 1970) ).
56. Four justices dissented. After examining the text and legislative background
of these statutes, Chief Justice Warren concluded that they represented a single con-
gressional purpose to outlaw nonmedicinal sales of narcotics. The statutes had
been passed to give a prosecutor different avenues by which to prosecute traffickers
in narcotics and to assure that they would not escape conviction altogether through
some technical failure in the proof. 357 U.S. at 394 (dissenting opinion). Justice
Douglas, joined by Justice Black, rejected the "same evidence" test and the Blockburger
decision. They liberally construed the double jeopardy clause to prohibit both multiple
punishments and multiple prosecutions for crimes committed during a single criminal
transaction. Id. at 395. Justice Brennan accepted the "same evidence" test, but in
applying that test to this case, he found that the same facts were used to prove each
violation of the three statutes; therefore, multiple punishments could not be imposed.
357 U.S. at 397 (dissenting opinion).
is required to prove the statutory offenses of joyriding and theft. 57 A de-
fendant who kills two persons with one shot, however, could only be sen-
tenced once under the "same evidence" test because he has only violated
one statute with one act.5 8 These inconsistent results could be avoided by
applying the "single act" test which uniformly prohibits multiple punish-
ments for a single unlawful act.
The "same evidence" test also failed to deal with the basic question
of when, if ever, two offenses which are not necessarily related in theory may
be so related in fact as to preclude multiple punishments. Even when two
statutes exist that would allow the imposition of double punishments under
the "same evidence" test, it may be unclear whether the legislature intended
double punishment. Two countervailing arguments predicated on legislative
intent can be advanced to resolve the uncertainty. First, a legislature, by
drafting two statutes, intended to allow cumulative punishments for two
criminal violations, especially when multiple violations produce a greater so-
cial harm than a single violation of one statute. 59 There is an immediate
superficial appeal in this interpretation; it is often presumed from the mere
existence of separate provisions that a legislature intended to allow cumula-
tive punishments. 60 Second, the legislature intended only to give a prose-
cutor different avenues by which to prosecute a defendant. Thus, if an
element of proof is lacking under one statute, prosecution may still lie under
another statute which proscribes the same or similar conduct but which re-
quires different elements of proof.
Because of uncertainty in determining the legislative intent behind dif-
ferent statutes under the "same evidence" test and because of harsh re-
sults that test often imposed in factual situations involving a single act, the
Supreme Court of Illinois adopted a third test for applying section 1-7(m).
The "independent motivation" test focused on yet another element of the
multiple offenses committed, the intention behind the defendant's conduct
57. Remington & Joseph, Charging, Convicting, and Sentencing the Multiple Of-
fender, 1961 Wis. L. REv. 528, 565.
58. Horack, The Multiple Consequences of a Single Criminal Act, 21 MINN. L.
REv. 805, 808 (1937). The situation in which two victims are injured by a single
act represents an exception to the "multiple victim" rule. Generally, courts impose sep-
arate punishments for each victim harmed by a defendant's actions.
59. A greater social harm may be found in two situations. First, when multiple
victims are injured by a defendant's conduct, a cause of action should lie for each
person injured because the legislature intended to protect all persons by enacting a
statute. See, e.g., Bell v. United States, 349 U.S. 81 (1955) (dissenting opinion) (only
one punishment imposed for transporting two women in violation of the Mann Act).
Second, when independent legislative policies are violated by the same act, a defendant
has, arguably, violated two interests of society. But cf. Neal v. State, 55 Cal. 2d 11,
357 P.2d 839, 9 Cal. Rptr. 607 (1960). A defendant who sets fire to a building and
thereby kills its occupant has violated society's interests in protecting property and in
individual security. Similarly, a defendant who invades a dwelling and then robs its
occupant can be said to have violated these same interests. See, e.g., Irby v. United
States, 390 F.2d 432 (D.C. Cir. 1967) (consecutive sentences for housebreaking and
robbery affirmed). In that case, the court held that the defendant made independent
decisions to violate each interest. 390 F.2d at 433 n.1. The dissenting justices, how-
ever, found that the defendant had only one intention in committing both crimes and
that the illegal entry was mere preparation for the intended crime of robbery. There-
fore, only one sentence for robbery should be imposed. 390 F.2d at 443 (dissenting
opinion).
60. Note, Consecutive Sentences in Single Prosecutions: Judicial Multiplication of
Statutory Penalties, 67 Y.E L.J. 916, 924-25 (1958).
in committing those offenses. 6 1 If an independent motivation was found

to support each offense committed, the offenses were not part of the "same
conduct" within the meaning of section 1-7(m), and consecutive or concur-
rent sentences could be imposed.
The "independent motivation" test was first applied in People v. Stew-
art.62 In that case, the offender attacked the complainant, and then de-
manded money. The defendant received concurrent sentences for aggra-
vated battery and attempted robbery. In an opinion written by Justice
Schaefer, the Illinois Supreme Court found nothing in the record to indicate
that "the acts which constituted the offense of aggravated battery were in-
dependently motivated or otherwise separable from the conduct which con-
stituted the attempted robbery." The court reversed the judgment for ag-
gravated battery. 63 The court could have reached the same result by ap-
plying the "single act" test because the element of force necessary to prove
both aggravated battery and attempted robbery was established by the "same
conduct." No member of the supreme court, however, objected to the
court's adoption of a new standard for measuring a defendant's culpability in
what had been a frequently occurring factual situation under the "single act"
test.64
When the Illinois Supreme Court applied the "independent motivation"
test in a second case, however, Chief Justice Underwood wrote a vigorous dis-
sent. People v. Whittington6" involved a defendant who escaped from the
Illinois State Penitentiary and stole a state car from the prison grounds.
61. The foundation for this test has been laid in two earlier Illinois Supreme
Court decisions where the court held that it was impermissible to impose multiple
sentences for one act involving several possible mental states. In People v. Stingley,
414 Ill. 398, 111 N.E.2d 548, cert. denied, 345 U.S. 959 (1953), the court found that
consecutive sentences for assault with intent to commit rape and assault with intent to
commit murder were inappropriate when a defendant severely beat one woman, at one
time, and in one place. Similarly, the court held in People v. Scott, 43 Ill. 2d 135, 251
N.E.2d 190 (1969), that three concurrent sentences for committing one burglary with
intent to commit theft, intent to commit rape, and intent to commit deviate sexual
assault could not be imposed. Although the defendant may have intended to commit
several crimes if the opportunity presented itself, this consideration did not justify the
imposition of three separate sentences when there was but one unlawful entry.
62. 45 Ill. 2d 310, 259 N.E.2d 24 (1970).
63. Id. at 313, 259 N.E.2d at 26. As a result of this decision, several appellate
courts have adopted this test in similar situations rather than continue to apply the
"single act" test. See, e.g., People v. Johnson, 6 111. App. 3d 233, 285 N.E.2d 611
(1st Dist. 1972) (when defendant attacked his victim in an attempt to steal his wallet,
the defendant intended to commit theft; the battery was merely part of the conduct
directed towards accomplishing the theft); People v. Miller, 2 Ill. App. 3d 206, 276
N.E.2d 395 (1st Dist. 1971) (defendant's conduct supporting charges of aggravated
battery and armed robbery was not independently motivated); People v. Tittsworth,
131 Ill. App. 2d 907, 268 N.E.2d 884 (4th Dist. 1971) (robbery and involuntary
manslaughter were not independently motivated when the defendant's striking of his
victim was the force necessary to support the robbery charge). See also People v.
Hill, 6 Ill. App. 3d 746, 286 N.E.2d 764 (1st Dist. 1972) (no evidence found to sug-
gest that murder and armed robbery were independently motivated), criticized in
People v. Ike, 7 Ill. App. 3d 75, 286 N.E.2d 391 (5th Dist. 1972) (court rejected the
"independent motivation" test in favor of the "same evidence" test).
64. Members of the court who later expressed opposition to the "independent mo-
tivation" test explained that they thought the opinion was merely a suggestion that
"independent motivation" should be the proper test. People v. Whittington, 46 Ill. 2d
405, 414, 265 N.E.2d 679, 684 (1970) (dissenting opinion).
65. 46 IM.2d 405, 265 N.E.2d 679 (1970).
The trial court imposed consecutive sentences for escape and theft which
were to commence after the defendant's preceding terms had been served. 6
The supreme court, however, decided that the defendant had stolen the car
as part of his plan for escape. Therefore, the theft had no motivation in-
dependent of the motivation for the conduct which constituted the offense
of escape. Judgment entered upon the charge of theft was reversed. In a
lengthy dissenting opinion, Chief Justice Underwood interpreted section
1-7(m) in the same way as the court had in People v. Johnson67 under the
"same evidence" test. He believed that while section 1-7(m) prohibited
consecutive sentences for a series of acts unless an additional factor was
introduced which established a separate offense, it did not proscribe consec-
utive sentences for a series of acts committed with the same underlying mo-
tivation. Interpreting section 1-7(m) on the basis of motives would allow
a defendant to commit any number of offenses without punishment as long
68
as his ultimate motivation was escape.
Chief Justice Underwood's fears became reality in People v. Lerch69
and People v. Russo, 70 but not because of the court's application of the
"independent motivation" test. In both cases, a prisoner attacked and se-
verely beat a jailer while attempting to escape. Each defendant was sen-
tenced on charges of aggravated battery and attempted escape. Over the
dissenting opinions of Chief Justice Underwood in which Justice Ryan con-
curred, the supreme court vacated the attempted escape sentence in each
case. In Lerch, the supreme court returned to the "single act" test because
the indictment charged the defendant with attempted escape in that he took
a substantial step towards the commission of escape when he beat the jailer.
Thus, the state was relying on the aggravated battery conduct of the de-
fendant to prove the commission of both offenses. As the court had pre-
viously held in other decisions, when the same act is used to prove multiple
offenses, only one punishment may be imposed. The appellate court in
Lerch, however, had reached the opposite conclusion under the "independ-
ent motivation" test. Conceding that the defendant's general motivation was
escape, the appellate court distinguished Whittington on the grounds that the
victim of both the escape and theft in that case was the state of
Illinois. But in this case, the escape was a crime against the state, and the
aggravated battery was a crime against an individual. Therefore, multiple
punishments were justified. The appellate court also recognized that se-
66. The Unified Code of Corrections continues this practice by stating that a
sentence for escape or attempted escape should not commence until the term under
which the offender is then being held expires. § 1005-8-4(g).
67. 44 111.2d 463, 256 N.E.2d 343, cert. denied, 400 U.S. 958 (1970).
68. Certainly the commission of the theft was instrumental in Whittington's
escape; yet it is a curious sort of reasoning which leads the majority to conclude
from that fact alone that the defendant cannot be convicted for the theft. Had
the escape been thwarted, the offense of theft would have been no less com-
plete. Had Whittington been forced to abandon the stolen car prior to his escape,
and nevertheless succeeded in escaping afoot, the two offenses would clearly be
separate. But here, where Whittington was successful in escaping with the stolen
car, the majority rewards his total success by finding conviction for the distinct
crime of theft to be impermissible .... [T]he result here is undesirable for it
seems to say to prisoners contemplating escape that, "If your escape is success-
ful, all lesser offenses which have aided your escape are unpunishable," thereby
encouraging the commission of the lesser offenses.
46 Ill. 2d at 413, 265 N.E.2d at 683-84 (dissenting opinion). Justices Crebs and
Culbertson concurred in this opinion.
69. 52 II. 2d 78, 284 N.E.2d 293 (1972).
70. 52 Ill. 2d 425, 288 N.E.2d 412 (1972).
rious offenses involving numerous individuals could be committed when a

defendant was motivated by a desire to escape from prison; the appellate
court concluded that it would be anomalous to hold the defendant account-
able for only one of these crimes. 7 1 It is unclear whether the supreme court
applied the "independent motivation" or the "single act" test in Russo be-
cause the court merely cited Whittington and Lerch, each of which had ap-
plied a different test, and then reversed the attempted escape sentence.
The supreme court applied the "independent motivation" test again in
People v. Rossi7 2 to uphold concurrent sentences for aggravated battery and
rape. In that case, a defendant brutally beat and raped a woman three
times during the course of one evening. The woman was also forced to sub-
mit to acts of sexual intercourse with several other men. Because the physi-
cal assaults were so severe and continued after the first offense of rape had
been committed, the court determined that they were independently moti-
vated. 73 Chief Justice Underwood and Justice Ryan specially concurred in
the affirmation of the sentences but disagreed with the applicability of the
"independent motivation" test.
A major shortcoming of the "independent motivation" test is the uncer-
tainty and lack of uniformity in its application. The Illinois Supreme Court
has never clearly stated whether the "motivation" in question relates to the
defendant's general criminal scheme or to his immediate purpose in com-
mitting each offense. If the first interpretation is intended, the court seems
to have implicitly held that in order for multiple offenses in one transaction
to be committed under the guise of the same "motivation," the lesser offense
must be incidental to the defendant's commission of the greater offense.
Thus, when it appeared in Rossi that the beatings of the woman extended
beyond the force which would be incidental to a commission of rape, sep-
arate sentences were imposed. But in Stewart, where the beating of a vic-
tim was incidental to the taking of his money, separate sentences were not
imposed. If the second interpretation is intended, a court must decide ex-
actly when a defendant formulated his intent to commit each particular
crime. If a defendant kidnapped a woman with the immediate purpose of
committing rape, only one sentence could be imposed because the crime
of kidnapping was based on his motivation to commit rape. But if he for-
mulated the intent to commit rape after the kidnapping, a separate motiva-
tion must have
74
prompted the kidnapping, and separate sentences could then
be imposed.
Because proof of a defendant's intent rests on circumstantial evidence,
the problems presented by this second interpretation seem limitless. A court
71. 131 Ill. App. 2d 900, 903, 268 N.E.2d 901, 904 (3d Dist. 1971).
72. 52 Ill. 2d 13, 284 N.E.2d 275 (1972). The defendant in that case had been
sentenced 9-10 years for aggravated battery after a jury trial, and had pleaded guilty to
rape for which only a 3-6 year sentence had been imposed. If the court had found that
the offenses arose from the "same conduct," only the 3-6 year sentence would have
been affirmed because that sentence was for the more serious offense of rape. Finding
which offense is the greater is not determined from the actual sentences imposed.
A court will look instead to the possible range of sentences which could be imposed
for each offense committed.
73. Cf., People v. Gersbacher, 102 Ill. App. 2d 165, 242 N.E.2d 277 (5th Dist.
1968), aff'd on other grounds, 44 Ill. 2d 321, 255 N.E.2d 429 (1970), in which the de-
fendant was sentenced for attempted murder and rape under the "single act" test be-
cause of the severe punishment inflicted on the victim.
74. Johnson, Multiple Punishments and Consecutive Sentences: Reflections on
the Neal Doctrine, 58 CALiF. L. Rv. 357, 370 (1970).
would be required to speculate on when a defendant decided to commit each

offense in a single transaction. This interpretation also overlooks the rela-
tionship of the offenses charged by requiring a court to focus on the indi-
vidual offenses committed. This could lead to unduly harsh punishments
being imposed on a defendant who committed several offenses incidental
to a greater offense which was committed in the same transaction. Assum-
ing, therefore, that the supreme court intended that a defendant's general
criminal scheme should be the essence of the "independent motivation" test,
the court has still failed to explicitly set forth the standards which should be
used to determine when a lesser offense is incidental to the commission of
a greater offense. This failure has left the lower courts with only a series
of ad hoe decisions by the supreme court to guide them through the "inde-
pendent motivation" test.
The final problem in applying section 1-7(m) concerned the question
of whether multiple victims were injured by a defendant's course of conduct.
The "multiple victim" rule focused on the consequences of the criminal
transaction. Generally, if a defendant committed offenses involving more
than one victim, he could be sentenced for each offense. 75 Thus, the ex-
istence of multiple victims made it easier for courts to find that a defendant's
acts were separable and distinct under the "single act" test, 76 provable by
different factual elements under the "same evidence" test,7 7 or independ-
ently motivated under the "independent motivation" test. 78 For instance,
a defendant who attempted to rob a store and then shot a police officer
who came into the store was sentenced for both attempted robbery and at-
tempted murder. 79 A defendant who robbed two passengers and a bus
driver was sentenced concurrently for the three armed robberies, although
the offenses were closely related in both time and location.8 0 Finally, a
defendant who committed aggravated battery of one person and robbery of
another was sentenced for each offense. 8 '
75. The purpose of the protection against multiple punishment is to insure that
the defendant's punishment will be commensurate with his criminal liability. A de-
fendant who commits an act of violence with the intent to harm more than one person
or by a means likely to cause harm to several persons is more culpable than a defendant
who harms only one person. Neal v. State, 55 Cal. 2d 11, 20, 357 P.2d 839, 844,
9 Cal. Rptr. 607, 612 (1960).
76. See, e.g., People v. Thompson, 3 Ill. App. 3d 684, 278 N.E.2d 1 (1st Dist.
1972) (defendant shot the store manager after attempting to rob the store).
77. See, e.g., People v. Garry, 131 Ill. App. 2d 715, 268 N.E.2d 568 (3d Dist.
1971) (attempted robbery of a store and attempted murder of a policeman).
78. See, e.g., People v. Berry, 2 Ill. App. 3d 760, 277 N.E.2d 328 (3d Dist.
1971) (each victim provided the defendant with an independent motivation).
79. People v. Ellis, 132 Ill. App. 2d 920, 271 N.E.2d 47 (3d Dist. 1971); People v.
Garry, 131 Ill. App. 2d 715, 268 N.E.2d 568 (3d Dist. 1971); People v. Hawkins,
131 Ill. App. 2d 286, 268 N.E.2d 511 (1st Dist. 1971); cf. People v. Wilson, 51 Ill.
2d 302, 281 N.E.2d 626 (1972) (policeman killed during attempted burglary of store);
People v. Miles, 133 Ill. App. 2d 599, 273 N.E.2d 647 (1st Dist. 1971) (aggravated
battery of a policeman after the defendant attempted to rob another person).
80. People v. Prim, 53 Ill. 2d 62, 289 N.E.2d 601 (1972).
81. People v. DeArmond, 5 Ill. App. 3d 831, 284 N.E.2d 474 (4th Dist. 1972).
The court mentioned several tests in its opinion.
[Ihe acts constituting the armed robbery and those acts constituting the aggra-
vated battery are clearly divisible one from the other in the point of time and
otherwise. The armed robbery was complete when the aggravated battery was
committed. The victims in the one were different than the victim in the other.
The proof required to sustain the one was different than the proof required to
sustain the other. They are separate and distinct crimes and cannot be said to
The Supreme Court of Illinois, however, has refused to apply the "mul-
tiple victim" rule when a defendant's single act harms two individuals. In
People ex rel. Starks v. Frye,82 a defendant drove his car across the center
line and collided head-on with another car. Two occupants of the other
car were killed, and the defendant was sentenced consecutively on two
counts of involuntary manslaughter. The supreme court applied the "single
act" test to section 1-7(m), and discharged the defendant on a writ of ha- 83
beas corpus upon completion of the minimum term of his first sentence.
The United States Supreme Court also reached similar conclusions in two
cases. In Bell v. United States,8 4 the Court held that the single transporta-
tion of two women across state lines in violation of the Mann Act could be
punished only once. Applying a policy of lenity, the Court decided that
when the underlying congressional intent is unclear, questions concerning
the proper enforcement of a penal statute should be resolved against the
imposition of a harsher punishment. The dissenting justices argued that
Congress had as its purpose the protection of an individual female, and not
the means of transportation; therefore, two sentences were proper. The
Supreme Court applied its policy of lenity again in Ladner v. United States.85
In that case, a defendant was sentenced consecutively for assaulting two
federal officers with a deadly weapon. The Court reversed one of the
sentences because the defendant had fired only one shot. A contrary inter-
pretation would allow the imposition of punishments disproportionate to
the act of assault because the number of officers affected by a defendant's
act would often have little bearing on the seriousness of that criminal act.
Only a clear expression of Congressional intent would justify such an inter-
pretation. 8a
The reasoning in Bell and Ladner leads to disparities in sentencing. It
is difficult to justify the imposition of a more severe punishment on a de-
fendant who injures two persons by firing two shots than on a defendant
who injures two persons with a single shot. Although two murders may
result from both courses of action, the Supreme Court drew a distinction be-
arise from the "same conduct" or the "same act."

id. at 833, 284 N.E.2d at 476. The dissenting justice relied on the only test not
mentioned above, the "independent motivation" test, to conclude that only the sen-
tence for armed robbery was permissible. Id. at 835, 284 N.E.2d at 477 (dissenting
and concurring opinion). This decision demonstrates how the application of different
tests to the same factual situation can yield different results, and how courts are
uncertain as to the proper test which should be used.
82. 39 Ill. 2d 119, 233 N.E.2d 413 (1968).
83. In several other cases, the state supreme court has also recognized that the
question concerning the propriety of concurrent and consecutive sentences is of suffi-
cient constitutional substance to be considered in post-conviction hearings. See, e.g.,
People v. Russo, 52 Ill. 2d 425, 288 N.E.2d 412 (1972); People v. Brown, 52 Ill.
2d 227, 287 N.E.2d 663 (1972); People v. Whittington, 46 Ill. 2d 405, 265 N.E.2d
679 (1970). The court has also held that improper concurrent sentences raise an
issue which is cognizable as plain error under ILL. REV. STAT. ch. 110A § 615(a)
(1971). See, e.g., People v. Cox, 53 Ill. 2d 101, 291 N.E.2d 1 (1972).
84. 349 U.S. 81, 83 (1954). The lower court decided that while there was
only a single act of transportation, the defendant must have had an unlawful purpose
personal to each woman involved. Therefore, consecutive sentences were permissible.
See Bell v. United States, 213 F.2d 629, 630 (6th Cir. 1954).
85. 358 U.S. 169 (1958).
86. Id. at 178. In dissent, Justice Clark argued that the Court's interpretation
informed the criminal that assaults on federal officers come "just as cheap by the
dozen." Id. at 180 (dissenting opinion).
tween the two situations to allow multiple punishments in the first and only
one punishment in the second.8 7 A better distinction might be drawn be-
tween those situations in which a defendant knows his actions are likely to
produce harm to more than one person, and those in which he does not
expect such consequences. For instance, a defendant who drives his auto-
mobile so negligently that it hits another vehicle would not necessarily expect
to injure several people.""
It is not clear whether section 1005-8-4 will significantly change the
old tests for the imposition of multiple sentences. The new section pro-
vides that a court must find that the multiple offenses "were committed as
part of a single course of conduct during which there was no substantial
change in the nature of the [defendant's] criminal objective" before its
proscription of multiple punishments becomes effective.8 9 Certainly, the three
general rules prohibiting multiple punishments for offenses which are in-
separable by their definitions must be applied here. Thus, when the of-
fenses charged consist of a greater offense and a necessarily included of-
fense, a substantive offense and its related inchoate offense, or an offense
which by its definition consists of a series of acts, the nature of the offenses
charged show that they must have been part of a single course of conduct
relating to a single criminal objective.
The scope of section 1005-8-4's limitation on multiple punishments be-
comes less clear when a court is presented with theoretically distinct but
factually connected offenses. At a minimum, the statute proscribes multiple
punishments for offenses arising from a single physical act because the of-
fenses are necessarily based on the same conduct and designed to achieve
a single criminal objective. 9 0 The most difficult question relates to the im-
position of multiple punishments for offenses which are not based on the
same act. Under section 1-7(m), the courts attempted to connect multiple
offenses occurring in a single transaction by applying tests that focused on
only one element of the criminal offenses involved, 91 rather than on all the
circumstances surrounding the commission of the offenses. 92 While each
of the elements considered-act, intent, law, and consequences-plays an
87. Horack, supra note 58, at 808. A similar distinction is drawn between taking
two articles from one person (one theft) and taking two articles from two different
persons (two thefts). Id. at 810. If theft were classified as an offense against
a person, the imposition of two punishments in the latter situation, as opposed to
the imposition of only one punishment in the first situation, could be justified because
two persons have been harmed. But in Illinois, theft is classified as an offense against
property, and in both situations the same property damage was sustained. Arguably,
therefore, the punishment should also be the same in both situations. § 16-1.
88. Remington & Joseph, supra note 57, at 550.
89. § 1005-8-4.
90. With multiple victims of a defendant's single act, however, the court could
easily find separate "criminal objectives" and impose multiple punishments. Thus,
the statute may have no impact on the "multiple victim" rule.
91. The "single act" test looked solely to the defendant's conduct; the "same
evidence" test considered the legal definitions of the offenses involved; the "indepen-
dent motivation" test was based on a determination of the defendant's objective in
committing the offenses; and the "multiple victim" rule focused on the consequences
of the defendant's actions.
92. One advantage of the "same transaction" test adopted in People v. Ritchie,
66 Ill. App. 2d 302, 213 N.E.2d 651 (4th Dist.), af 'd on other grounds, 36 Ill.
2d 392, 222 N.E.2d 479 (1966), was that it forced a court to consider all the
factors which must exist for criminal liability to attach. See note 16 supra.
important role in determining the nature of the offenses charged and the
number of offenses committed, the legal significance of a criminal trans-
action involving several offenses cannot be defined as essentially one crime
on the mere singular existence of one element which is common to all of
the multiple offenses involved. 93 The courts' reliance on this faulty
94 premise
led to diverse interpretations and conclusions under section 1-7(m).
While section 1005-8-4 does not clearly resolve this problem, it should
provide the courts with a basis for adopting a more definite standard than
previous tests. The new section sets forth two elements which must be
present to prevent multiple punishments: single course of conduct and a
single criminal objective. If the Illinois Supreme Court were to interpret the
words "criminal objective" as relating to the defendant's general motiva-
tion, the new statute would represent no change from the vaguely defined
"independent motivation" test. If, however, the words "criminal objective"
are held to relate to the defendant's commission of the greater offense in a
single transaction, the statute will clarify the existing tests. Under this in-
terpretation, any conduct constituting a lesser offense that is necessarily in-
cidental to the commission of the greater offense represents no change in the
defendant's criminal objective and cannot be separately punished. Thus,
if the defendant used only that amount of force which was necessary to
commit rape, he could be sentenced only for rape, and not for battery.
The battery was merely a necessary incident of his objective to commit rape.
If, however, the defendant severely beat his victim or continued his physical
assaults after completing the rape, the battery would be beyond that which
is normally incidental to the commission of rape, and could be separately
punished. This interpretation would be supported by both the language
of the statute and at least some of the existing case law. 95
This "incidental offense" rule is also based on a realistic view of the
criminal conduct to be deterred by the imposition of multiple punishments
and the type of punishment the legislature intended to be imposed for the
offenses committed. Considering again the rape-battery example, once a
defendant has decided to commit rape, it is most likely that he has also de-
cided to use the amount of force necessary to commit that offense. The
possibility of suffering multiple punishments would not be a deterrent to
him. The legislature probably considered the amount of force which is nec-
essarily involved when it fixed the range of sentences which could be im-
posed for rape. Thus, any penalty imposed would be the proper punish-
ment for the total conduct involved in the offense. When the use of force
exceeds that which is normally incidental to rape, however, both considera-
tions justify the use of multiple punishments. Although the rape-battery de-
fendant may not be deterred from using additional force by the possibility
of suffering multiple punishments, the law should discourage a defendant
93. Horack, supra note 58, at 805.

94. A factual situation exhibiting several different acts, but all based on a single
objective of a defendant, would lead one court to impose multiple punishments under
the "single act" test and another court to impose only one sentence under the "inde-
pendent motivation" test. This inconsistency would occur in every case with a singular
existence of one element among the crimes charged but a multiple existence of another
element which was considered by one of the four tests.
95. See, e.g., People v. Rossi, 52 Ill. 2d 13, 284 N.E.2d 275 (1972); People
v. Gersbacher, 102 Ill. App. 2d 165, 242 N.E.2d 277 (5th Dist. 1968), afI'd on
other grounds, 44 Ill. 2d 321, 255 N.E.2d 429 (1970); People v. Ruiz, 82 111. App.
2d 184, 226 N.E.2d 438 (Ist Dist. 1967).
from committing other, lesser offenses. Additionally, in fixing the possible

sentences for the greater offense, the legislature would not have considered
acts not normally incidental to the greater offense. Thus, the use of an
abnormal degree of force in rape, the commission of further assaults after
the rape had been completed, or the commission of a totally unrelated of-
fense such as theft would not have been considered by the legislature in
determining the sentencing possibilities for rape; the occurrence of any of
these additional offenses would justify the imposition of a separate pun-
ishment.
Section 1005-8-4 provides the Illinois Supreme Court with a basis for
adopting the "incidental offense" test. This test is based on both elements
required by section 1005-8-4: a single course of conduct and a single
criminal objective. When the lesser offenses in a particular case are only
incidental to the commission of the greater offense, the defendant's course
of conduct relates to a single criminal objective, and multiple punishments
should not be imposed. Antecedent or simultaneous acts would assume in-
dependent significance only if the defendant embarked on a different course
of conduct in committing those acts; otherwise, the acts would merge into
the category of offenses designed to accomplish defendant's objective. 96 On
the other hand, lesser offenses committed after the greater offense has been
completed would generally support multiple sentences, The law should
certainly attempt to deter a defendant from committing any further offenses
once the major offense has been completed. Additionally, it would be im-
possible for a legislature to determine penalties taking into account actions
a defendant might take after committing the greater offense. The explicit
adoption of such a test by the Illinois Supreme Court would not require
substantially different results from those arrived at in previous cases. The
test would, however, give the lower courts a more definite standard for de-
termining the propriety of multiple sentences.
Even assuming that the courts will adopt the "incidental offense" test
or some other uniform test for applying section 1005-8-4, the question con-
cerning how sentences will be imposed under this new section is still unan-
swered. Section 1005-8-4(b) explicitly recognizes the harmful effects of
consecutive sentences. The imposition of consecutive sentences only frus-
trates the therapeutic penology goal of the Unified Code of Corrections. 97 If
the termination of one sentence represents only the beginning of another,
no plan of treatment for the offender's return to the community can be said
to exist. 98 Moreover, the imposition of successive punishments hinders the
function of an indeterminate sentence, namely the encouragement of reha-
96. Kirchheimer, The Act, the Offense and Double Jeopardy, 58 YALE L.J. 513,
522 (1949).
97. The aims of sentencing are to deter the offender from repeating the offense,
to generally deter the public from similar conduct, to protect society by removing
the offender from society for the period of his confinement, to rehabilitate the of-
fender, and to inflict retribution upon the defendant in a manner which reflects soci-
ety's view of the seriousness of the offense. Halprin, Sentence Review in Maine:
Comparisonsand Comments, 18 ME. L. Rnv. 133, 133-34 (1966).
98. MODE. SENTENCING Acr § 22, comment (1963). Section 22 provides that
"[s]eparate sentences of commitment imposed on a defendant for two or more crimes
constituting a single criminal episode shall run concurrently. Sentences for two or
more crimes not constituting a single criminal episode shall run concurrently unless
the judge otherwise orders." The Model Penal Code allows consecutive and concurrent
sentences regardless of whether the offenses arose from a single incident. It places
a limit, however, on the length of imprisonment that can be imposed. § 7.06 (1962).
bilitation by holding out the possibility of early release on parole. 99 Con-
secutive sentences encourage neither rehabilitation nor the exercise of dis-
cretion by parole authorities at a time when such discretion may contribute
the most to rehabilitation.
Prior to the enactment of the Unified Code of Corrections, consecutive
sentences were considered separate terms of imprisonment. Consequently,
time credit for good behavior earned on the first sentence could not be
used for credit on subsequent sentences. 100 Under the Unified Code of Cor-
rections, the offender is treated as if he were committed for a single term
of imprisonment. The minimum term must equal one year or the sum of the
minimum terms imposed, whichever is greater. The maximum term must
equal the aggregate of the maximum indeterminate terms and determinate
terms imposed. These aggregate minimum and maximum terms may not
exceed twice the minimum and maximum terms permitted for the most se-
rious felony committed. Time credit is then awarded against these mini-
mum and maximum terms.' 01
Section 1005-8-4 also requires a judge to find that certain criteria have
been met before he can impose consecutive sentences. This requirement
applies even in those cases involving a defendant who committed several
offenses which were not within a single course of conduct. Previously, there
was no standard set by either the legislature or the courts for determining
when consecutive rather than concurrent sentences should be imposed. In
People v. Stingley, 10 2 the Illinois Supreme Court held that where two sep-
arate offenses were sufficiently related to enable the state to charge both
in separate counts of the same indictment, but were sufficiently distinct to
support multiple sentences, only concurrent sentences could be imposed.
The ruling in Stingley, however, has not been followed. Thus, where mul-
tiple sentences have been justified, the choice between consecutive and con-
current sentences has been left within the trial judge's discretion. It is
doubtful whether section 1005-8-4 will have any significant impact in de-
99. Indeterminate sentencing rests upon the dual premise that individuals who
are not likely to engage in future criminal conduct, and thus pose no danger to
society, should not be confined merely for the sake of confinement; and that indi-
viduals who do demonstrate a strong propensity for crime, and whose release would
probably endanger public safety, should be confined until they do not pose this danger.
Underlying this premise is the assumption that one can distinguish dangerous crimin-
als who should be detained from those who have undergone a sufficient personality
change to permit release. Doubts about the predictive accuracy of this method are
widespread. Schreiber, Indeterminate Therapeutic Incarceration of Dangerous Crimi-
nals: Perspectives and Problems, 56 VA. L. REv. 602, 612, 618-19 (1970).
100. People ex rel. Beadle v. Illinois Parole & Pardon Bd., 40 Ill. 2d 290,
239 N.E.2d 782 (1968), cert. denied, 393 U.S. 1070 (1969). The court found that
a contrary interpretation would allow a prisoner to be eligible for parole on both
sentences without ever having served any part of the second sentence and thus, in
effect, eliminate consecutive sentences. The court, however, required that good time
on the second sentence be computed at the same rate good time was being earned
at the expiration of the first sentence. The maximum rate of good time allowed
was 6 months for each year served.
101. §§ 1005-8-1, 1005-8-4. The Department of Corrections may prescribe addi-
tional rules and regulations for the diminution of sentences. § 1003-6-3. Subject
to earlier termination under § 1003-3-3, a defendant will be eligible for parole as
prescribed in § 1005-8-1(e). When consecutive sentences are imposed, the parole
term is equal to that imposed for the most serious offense committed. § 1005-
8-4(e) (2).
102. 414 Ill. 398, 111 N.E.2d 548, cert. denied, 345 U.S. 959 (1953).
termining whether a trial judge acted properly in sentencing a defendant
to consecutive rather than concurrent punishments for multiple offenses.
While a judge must find that certain criteria are satisfied before imposing
consecutive sentences, section 1005-8-4 does not require a judge to give
reasons for the sentences imposed. 10 3 Without a statement of reasons, there
is no proof whether the judge imposed the sentence on a reasonable basis.
Thus, this decision would be left to the trial judge's discretion. An appellate
court rarely questions a judge's discretion in sentencing consecutively unless
it is clearly based on impermissible criteria.' 0 4 Therefore, section 1005-8-4
should require that a sentence
10 5
be articulated in a form which permits ade-
quate criticism and review.
While some of the regressive effects of consecutive sentences have been
eliminated by the code requirements which prescribe criteria for their impo-
sition, place a ceiling on the length of the terms which can be imposed, and
change the manner of compilation of time credit for good behavior, the
parole possibilities presented by consecutive sentences remain restricted.
The new multiple sentencing provision also fails to set any specific guidelines
for a trial judge's determination of whether even concurrent sentences may
be imposed on a defendant convicted of multiple offenses. As under section
1-7(m), no mention is made of concurrent sentences in section 1005-8-4.
The lack of statutory language referring to concurrent sentences in section
1-7(m), however, did not prevent Illinois courts from uniformly finding
their imposition impermissible for offenses arising from the "same conduct."
The courts relied on the committee comments to that section which stated:
"subsection (m) is intended to codify the holding in People v. Schlenger,10 6
by the implicit converse of the provision stated, i.e., if the offenses resulted
from the same conduct, the defendant may not be sentenced on both, either
concurrently or consecutively.' 0 7 In Schlenger, concurrent sentences of 5-15
103. § 1005-8-4(b). But see MODEL SENTENCING ACT § 10 (1963).

104. See, e.g., People v. Hopkins, 53 Ill. 2d 452, 292 N.E.2d 418 (1973). In
that case, a defendant was sentenced consecutively for attempted rape and armed
robbery. The court found no merit to the claim that the trial judge could only
impose concurrent sentences when the prosecution had not recommended the imposi-
tion of consecutive sentences. Section 1-7(m) conferred the responsibility of sentenc-
ing upon the judge, not upon the prosecution. Cf. People v. Hurst, 42 Ill. 2d 217,
247 N.E.2d 614 (1969), where the court held that a death sentence was not invali-
dated merely because the sentence was imposed without stated reasons when there
was nothing in the record to substantiate the criticism of the court's decision, and
none would be presumed.
105. A statement of reasons would also create a body of judicial opinion on sen-
tencing which would guide trial courts in imposing sentences and eliminate much
of the disparity. Note, Sentencing Felons to Imprisonment Under the Kansas Criminal
Code: The Need for a Consistent Sentencing Policy, 10 WASHBURN L.J. 269, 282
(1971). A certain amount of disparity will be eliminated by the code because it
prescribes the range of punishments which may be imposed for the various offenses.
106. 13 Ill. 2d 63, 147 N.E.2d 316 (1958).
107. ILL. ANN. STAT. ch. 38, § 1-7, committee comments, at 37 (Smith-Hurd
1972). Only Chief Justice Underwood has dissented from the position taken by the
Illinois courts that section 1-7(m) proscribes the imposition of concurrent sentences
for offenses arising from the "same conduct":
Sections 3-3 and 1-7(m), read together, outline the legislature's general plan with
regard to multiple prosecutions and sentencing. When several offenses are based
on the same act by a defendant they must be combined in a single prosecution and
only one conviction and sentence may be imposed. When several offenses are
based on the "same conduct" [series of acts] of defendant he may be convicted
of each, but only concurrent sentences may be imposed. When several offenses
years for armed robbery and 5-10 years for grand larceny were found im-
permissible because both offenses arose from the same conduct. Judgment
on the lesser offense of grand larceny was reversed, and the judgment for
armed robbery was affirmed. 10 8 In Stingley, the court had held that con-
current sentences for offenses arising from the same conduct were not preju-
dicial to a defendant because the period of incarceration was the same as if
only a single sentence had been imposed. 109 But in Schlenger, the court
realized that concurrent sentences would also have an adverse effect on
the defendant's application for parole similar to the harm caused by con-
secutive sentences." 10
The prejudicial effect that concurrent sentences imposed upon a de-
fendant's parole possibilities in Schlenger still exists under the Unified Code
of Corrections. In granting parole, the parole and pardon board is required
by the code to consider material which has been transmitted to the Depart-
ment of Corrections by the committing court, statements prepared by the
prosecuting state's attorney, and a social evaluation report which states the
circumstances of the defendant's offenses. 1 Included within the material
submitted by the committing court is the sentence imposed, additional state-
ments from the state's attorney, any statement by the court giving the rea-
sons for imposing the sentence, and presentence reports. The statements
from the state's attorney also include the facts and circumstances of the
defendant's offenses. 1 2 With this great amount of information available,
there is little doubt the parole and pardon board will know that the de-
fendant was serving concurrent sentences. The board will surely consider
this factor at the parole hearing, and it will no doubt influence its decision
to grant or deny the defendant's application for parole. Despite the con-
tinued existence of the harmful influence concurrent sentences place on the
defendant's parole possibilities, it is doubtful that Illinois courts will continue
to find concurrent sentences impermissible for the multiple offenses defined
in section 1005-8-4. The courts would have to reach an independent de-
cision concerning concurrent sentences without any indication of legislative
intent proscribing their imposition in certain cases as existed in section
1-7(m) and its committee comments.
are not based upon the "same conduct," they may be prosecuted separately and
sentences may be concurrent or consecutive.
People v. Whittington, 46 Ill. 2d 405, 415, 265 N.E.2d 679, 684-85 (1970) (dissent-
ing opinion). See also People v. Perry, 47 Ill. 2d 402, 266 N.E.2d 330 (1971)
(specially concurring opinion). The Chief Justice has also found no violation of
constitutional rights by the imposition of concurrent sentences for offenses arising
from the "same conduct." People v. Russo, 52 Il. 2d 425, 431, 288 N.E.2d 412,
415 (1972) (dissenting opinion).
108. When only one sentence may be properly imposed, that sentence is for the
greater offense. The relative gravity of the offenses involved is not determined by
the sentences actually imposed. Instead, a court will compare the possible ranges
of imprisonment which can be imposed under the statutes to determine which is the
greater offense. The Unified Code of Corrections has classified each substantive of-
fense of the criminal code as either murder; a class 1, 2, 3, or 4 felony; a class
A, B, or C misdemeanor; or a petty or business offense; and has listed the possible
range of punishments for each grouping. § 1005-8-1, 8-5-1.
109. 414 Ill. 398, 405, 111 N.E.2d 548, 551, cert. denied, 345 U.S. 959 (1953).
110. 13 Ill. 2d at 67, 147 N.E.2d at 318. The state contended that granting
pardons and paroles are functions of the executive branch of the government, and
judicial notice of these regulations should not be taken. Id.
111. §§ 1003-3-4, 1003-8-2.
112. §§ 1005-4-1(d), 1005-4-1(c).
Regardless of the standard used to determine when concurrent sen-
tences may be imposed for multiple offenses, any time a court reverses a sen-
tence for a crime arising in a multiple offense situation, the conviction for
that offense, arguably, should also be reversed. Such a holding would be in
accord with the three rules that protect a defendant from multiple punish-
ments. Under section 1-7(m), however, Illinois courts traditionally reversed
sentences only, without considering11whether
3
the accompanying judgments of
convictions should also be reversed.
The United States Supreme Court has recognized that adverse conse-
quences result from multiple convictions. In Benton v. Maryland,1 1 4 the
Court held that even a remote possibility of adverse consequences occurring
was sufficient to raise a justiciable issue." 5 The Court first discussed the
possibility that multiple convictions for offenses arising during a single course
of conduct could be used to impeach the defendant's character if put into is-
sue at a future criminal or civil trial. 116 The Court recognized that a jury
might not understand that both convictions arose from the same transaction,
which would mitigate the effect of placing both convictions into evidence.
113. Several cases merely state in their dispositional provisions that judgment on
the lesser crime is reversed. See, e.g., People v. Whittington, 46 Ill. 2d 405, 265
N.E.2d 679 (1970). It is unclear whether the term "judgment" denotes both the
judgment of conviction and the sentence imposed. It appears, however, that reversal
of a judgment does not necessarily imply that the conviction of the offense is also
reversed. The terms "sentence" and "judgment" are generally synonomous, and de-
note a formal declaration of the legal consequences of guilt. People v. Adams, 73
Ill. App. 2d 1, 220 N.E.2d 17 (1st Dist. 1962), cert. denied, 389 U.S. 943 (1967);
cf. People v. Nicholson, 401 Ill. 546, 82 N.E.2d 656 (1948). The term "convic-
tion" is the actual finding of guilt by a court or jury, and an adjudication of
that fact. People v. Spears, 83 Ill. App. 2d 18, 226 N.E.2d 67 (4th Dist. 1967).
Compare § 2-5 defining conviction to be a judgment of conviction or sentence entered
upon a plea or verdict of guilty, with § 1-7(d) authorizing a court to sentence a
defendant after conviction.
114. 395 U.S. 784 (1969). The Court refused to follow the concurrent sentence
doctrine which states that if an invalid sentence runs concurrently with a valid sen-
tence, the defendant is not prejudiced thereby, and a challenge to the invalid sentence
is not justiciable. Id. at 787. If the Court had not rejected this doctrine, the de-
fendant's appeal on the issue of double jeopardy would have been rendered moot.
The concurrent sentence doctrine may still have some vitality, however, as a rule
of judicial convenience permitting judges to avoid ruling on issues that have no appre-
ciable impact on the rights of the parties involved. Id. at 792.
115. Insignificant or collateral adverse consequences that result from a conviction
would not raise a justiciable issue. For instance, in Sibron v. New York, 392 U.S.
40 (1968), the Court inferred that general injury to a defendant's character in the
community would be an insignificant consequence. Id. at 56 n.17. That case, how-
ever, involved only a misdemeanor conviction. The Court is more likely to find sub-
stantial adverse consequences resulting from a felony conviction. See, e.g., Pollard
v. United States, 352 U.S. 354, 358 (1957).
116. In Illinois, the credibility of any witness may be impeached by admitting
into evidence his prior convictions of infamous crimes. §§ 124-1, 155-1. This rule
was modified in People v. Montgomery, 47 Ill. 2d 510, 268 N.E.2d 695 (1971),
when the Illinois Supreme Court adopted rule 609 as the proper standard for impeach-
ment by evidence of prior criminal convictions. The rule provides that a conviction
may be used for impeachment if (1) it is punishable by death, or imprisonment
in excess of one year; or (2) it involved dishonesty or a false statement regardless
of the punishment imposed; and (3) not more than 10 years has elapsed since the
date of conviction or the release of the prisoner from confinement, whichever is
later. PROPOSED RULES OF EVIDENCE FOR UNITED STATES COURTS AND MAGISTRATES,
56 F.R.D. 183, 269-70 (1973).
Arguably, the conviction of a lesser offense committed during the same course
of conduct as a greater offense would play, at most, a negligible role in
character impeachment. Once a defendant has been impeached by evidence
of one offense, further evidence of another crime would have a minimal
effect. Second, because a defendant is entitled to explain the circumstances
of these offenses in rebuttal, he could reveal that the multiple offenses arose
out of the same course of conduct and hope that the jury would treat the
convictions as essentially one crime. Third, a judge could find that the
prejudicial effect of admitting into evidence conviction of a crime which
occurred during the same course of conduct as another crime already ad-
mitted for impeachment purposes, outweighed its probative value, and there-
fore could exclude the evidence of the second conviction.
The Court also discussed the possibility that multiple felony convictions
could be used to enhance any future sentence of the defendant under the
habitual criminal statutes that exist in some states.1 1 7 Although Illinois does
not have an habitual criminal statute, a defendant's history of criminality
and delinquency is considered in a sentence hearing, and past criminal
convictions may be used to aggravate his sentence for a subsequent crime."18
There is also a possibility that a defendant's Illinois convictions could be
used to increase his sentence in another state with an habitual criminal stat-
ute, if and when the defendant committed a crime in that state. 1 9
The Court in Benton did not discuss a third adverse consequence of
multiple convictions for offenses arising during a single course of conduct.
The harm that recorded multiple convictions have on a defendant's chance
for parole has been discussed in several recent Illinois appellate court deci-
sions. In People v. Leggett, 20 a defendant was convicted of and sentenced
for both armed violence and armed robbery which arose from the same con-
duct. The defendant contended that despite the reversal of his sentence
for armed violence, he was, nevertheless, in a disadvantageous position for
parole because both convictions continued to appear on his record.' 2 ' The
court agreed with his argument and reversed his conviction for armed vio-
lence. Later, the same court reversed a conviction and sentence for aggra-
vated battery when that charge arose from the same conduct supporting an
armed violence charge.' 22 The court relied on its ruling in Leggett. In
People v. Lilly,' 23 however, the same court refused to reverse a conviction
117. 395 U.S. at 790. The rule in most states, however, is that all convictions
handed down at one time count only as one conviction for purposes of determining
punishment under habitual criminal statutes. Annot., 24 A.L.R.2d 1262 (1952).
118. Although sentence hearings are held after every criminal conviction, presen-
tence reports containing the defendant's criminal record must be filed only after felony
convictions. §§ 1005-3-1,-3-2,-4-1.
119. 1966 U. ILL. L.F. 780, 783, n.25.
120. 2 Ill. App. 3d 962, 275 N.E.2d 651 (3d Dist. 1971).
121. Whether notifying the parole and pardon board that a sentence has been
reversed is sufficient notice for it to also disregard the second conviction in determin-
ing whether to grant a defendant parole has also been challenged elsewhere. Johnson,
supra note 74, at 367-68.
122. People v. Short, 4 Ill. App. 3d 832, 281 N.E.2d 783 (3d Dist. 1972); accord,
People v. Rose, 7 Ill. App. 3d 374, 287 N.E.2d 195 (2d Dist. 1972).
123. 9 Ill. App. 3d 46, 291 N.E.2d 207 (3d Dist. 1972). The second district appel-
late court also changed its mind on the propriety of reversing multiple convictions.
Compare People v. Rose, 7 Ill. App. 3d 374, 287 N.E.2d 195 (2d Dist. 1972), with
People v. Budzynski, 9 Ill. App. 3d 24, 291 N.E.2d 676 (2d Dist. 1973). The fourth
district appellate court, however, has recently reversed both the conviction of and
for taking indecent liberties with a child, a crime which arose from the
same conduct supporting the defendant's conviction for rape, because the
defendant had been sentenced only for rape. The court relied on two inter-
vening Illinois Supreme Court decisions,12 4 in which the court modified the
judgments for offenses resulting from the same conduct as to the sentences
only. The dissenting justice in Lilly felt, however, that the same rationale
which authorized a sentence for only the most serious offense committed
also supported the conclusion that the conviction for the lesser offense ought
to be vacated. If section 1-7(m) were interpreted to require that only the
sentence be vacated, the conclusion that the defendant committed multi-
ple independent crimes would continue, while the rationale supporting the
imposition of one sentence was based on a contrary belief. Citing two Illi-
nois Supreme Court decisions in which the court had reversed both the
sentence and conviction of the lesser offense,'1 25 the dissenter in Lilly felt
that the appellate court's reliance on supreme court cases on either side of
this issue was questionable, because the issue had not been resolved on its
merits in any of these cases in the supreme court. 1 26
As has been shown, the defendant is nearly as disadvantaged by multi-
ple convictions as he is by concurrent or consecutive sentences. Thus, the
dissenting justice in Lilly would seem to be correct in that if multiple pun-
ishments are not justified, the conviction of the lesser offense should also
be reversed as a part of that punishment.
Even if Illinois courts determine that both concurrent sentences and mul-
tiple convictions are permissible under section 1005-8-4, the significant harm
which consecutive sentences impose on a defendant should require the Illi-
nois Supreme Court to set a definite standard under section 1005-8-4 for
determining when these sentences may be imposed. The confusion which
existed among the courts concerning the proper application of section 1-7(m)
mitigated the important role that section should have played in protecting
a defendant from the adverse consequences of multiple punishments. With-
out the existence of a uniform test for applying that section, it was difficult
sentence for a lesser offense in People v. Gant, 9 Il. App. 3d 774, 293 N.E.2d
20 (4th Dist. 1973) (conviction and sentence for battery reversed because the bat-
tery was not "independently motivated" from the armed violence offense).
124. People v. Russo, 52 Ill. 2d 425, 288 N.E.2d 412 (1972); People v. Brown,
52 Ill. 2d 94, 285 N.E.2d 1 (1972). The courts in Budzynski and Lilly cited this
quotation from Brown: "[W]e affirm the judgment of the trial court finding the
defendant guilty of the offense of rape, and we modify the judgments of the trial
and appellate courts to specify that sentence was entered for the crime of rape only."
52 IIl. 2d at 106, 285 N.E.2d at 8-9. The courts' reliance on this quotation appears
to be misplaced. The defendant in that case had been convicted of rape and taking
indecent liberties with a child. He was sentenced to serve 7-11 years in the peniten-
tiary. The judgment order, however, failed to specify the offense or offenses for
which he was sentenced. The court, therefore, was merely clarifying that the sentence
must be for the greater offense (rape) only, because both offenses arose from one
act of sexual intercourse.
125. People v. Whittington, 46 Ill. 2d 405, 265 N.E.2d 679 (1970); People v.
Duszkewycz, 27 Ill. 2d 257, 189 N.E.2d 299 (1963). A careful reading of these
two opinions, however, reveals that the supreme court reversed only the sentences
for the lesser offenses, and not the convictions. Only recently has the supreme court
reversed a conviction and sentence for an offense which occurred simultaneously with
another violation. This case, People v. Cox, 53 Ill. 2d 101, 291 N.E.2d 1 (1972),
however, had a unique factual situation. See note 34 supra for a discussion of this
case.
126. 9 I. App. 3d at 53-54, 291 N.E.2d at 212-13 (dissenting opinion).
for a defendant and a court to know when a defendant could invoke the
statute's protection. One of the purposes of statutory criminal law is to pro-
vide predictability and certainty in the application of its provisions. This
purpose was not served by section 1-7(m) as interpreted by the courts.
Hopefully, the courts will be able to reach some degree of uniformity in ap-
plying section 1005-8-4.
Lois J. CANNELL

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Bluebook 21st ed.

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APA 7th ed.

Chicago 17th ed.

McGill Guide 9th ed.

AGLC 4th ed.

MLA 8th ed.

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In Illinois, when a defendant's conduct in a single transaction estab-

not be convicted of both an inchoate and a principal offense (e.g., attempted

in the nature of the criminal objective. Sentences shall run concur-

10. §§ 1005-8-4(a), (b).

15. 13 Ill. 2d at 64, 147 N.E.2d at 317.

for interfering with an institution of higher learning and trespassing on

officer upon the scene of an attempted robbery presented an additional factor

in committing those offenses. 6 1 If an independent motivation was found

rious offenses involving numerous individuals could be committed when a

would be required to speculate on when a defendant decided to commit each

arise from the "same conduct" or the "same act."

93. Horack, supra note 58, at 805.

from committing other, lesser offenses. Additionally, in fixing the possible

103. § 1005-8-4(b). But see MODEL SENTENCING ACT § 10 (1963).

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