People v. Sass , 73 Ill. App. 3d 554 ( 1979 )

73 Ill. App. 3d 554 (1979) 392 N.E.2d 399

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
WILLIAM SASS, Defendant-Appellant.

No. 78-140.

Illinois Appellate Court — Third District.

Opinion filed July 13, 1979.

Robert Agostinelli and Frank W. Ralph, both of State Appellate Defender's Office, of Ottawa, for appellant.

Edward F. Petka, State's Attorney, of Joliet (John X. Breslin, of State's Attorneys Appellate Service Commission, of counsel), for the People.

Affirmed in part and vacated in part.

Mr. PRESIDING JUSTICE STOUDER delivered the opinion of the court:

• 1 Defendant, William Sass, was charged in a two-count information with the offenses of attempt murder and armed violence. After a jury trial he was found guilty of both offenses and sentenced to concurrent terms of from 3 to 9 years on each offense by the circuit court of Will County. On this appeal the only issue raised is the defendant's contention that there should be conviction and sentence for only one offense since each offense arose out of the same act. Each charge referred to the act of the defendant in shooting Steven Bugyie with a handgun. Under the rules announced in People v. King, 66 Ill. 2d 551, 363 N.E.2d 838, People v. Lilly, 56 Ill. 2d 493, 309 N.E.2d 1, and People v. Short, 60 Ill. App. 3d 640, 377 N.E.2d 389, where the same physical act constitutes two or more offenses, it is proper to enter a judgment of conviction and sentence only on the most serious of the offenses. The State in its brief concedes that the judgment of conviction and sentence on the offense of armed violence should be vacated under the rule previously announced.

However, the State has moved for the assessment of costs against the defendant apparently on the theory that the defendant was not successful in reversing his conviction for attempt murder. We do not agree.

• 2 The only relief sought in this court was the vacation of the conviction and sentence for armed violence, and in that respect the defendant has been completely successful. Since the defendant has been successful on his appeal, we find no reason for assessing costs against him and accordingly, the motion for the assessing of costs is denied.

For the foregoing reasons the judgment of conviction and sentence of the defendant, William Sass, for the offense of armed violence is vacated. The judgment and sentence for the offense of attempt murder is affirmed.

Judgment vacated in part, affirmed in part.

ALLOY and BARRY, JJ., concur.