What is Armed Violence 720 ILCS 5/33A-2?

If you possess a weapon during the commission of a felony, the State could charge you with this offense. A person commits this crime “when, while armed with a dangerous weapon, he commits any felony defined by Illinois Law, except first degree murder, attempted first degree murder, intentional homicide of an unborn child, second degree murder, involuntary manslaughter, reckless homicide, predatory criminal sexual assault of a child, aggravated battery of a child as described in Section 12-4.3 or subdivision (b)(1) of Section 12-3.05, home invasion, or any offense that makes the possession or use of a dangerous weapon either an element of the base offense, an aggravated or enhanced version of the offense, or a mandatory sentencing factor that increases the sentencing range. 720 ILCS 5/33A-2(a).

What does “while armed with a dangerous weapon” mean?

A person is considered armed with a dangerous weapon when he carries on or about his person or is otherwise armed with a firearm. To be considered “otherwise armed,” the person must have immediate access to or timely control over the weapon. Illinois Pattern Jury Instruction 11.51.

What Is an Example of Armed Violence?

Take almost any felony and add the phrase “while armed with a firearm” and there is a good chance that you are committing armed violence. Some people mistakenly believe that you must be engaged in some “violent” act to be charged. That simply is not the case. The “title” of the charge is not the crime. Arguing that you were not engaged in a violent activity is a losing strategy at trial. Here are 3 examples of the crime, with anything violent going on:

1. You have cocaine or heroin in one pocket (the crime of Possession of a Controlled Substance) and a gun in another pocket;
2. You steal from unlocked, unoccupied car (the crime of burglary) “while armed with a firearm;”
3. You possess burglary tools “while armed with a firearm.”

How Is Armed Violence Different from Armed Habitual Criminal?

With AHC, a person possesses a gun after having previously committed certain crimes. With AV, a person possesses a gun while currently committing certain crimes. A person can be charged with both AHC and AV at the same time if he or she has a gun, has a bad criminal history, and is currently engaged in certain felonies. For example, if you have a prior robbery and residential burglary conviction, and you are currently charged for possessing cocaine while armed with a handgun, then the State can charge you with both AV and AHC.

Additionally, the sentencing range is different. AHC is a 6-to-30-year IDOC sentence served at 85%. AV is a 15-to-30-year IDOC sentence served at 50%.

Do I need a lawyer?

Absolutely, because you should be represented by an attorney on any offense that can result in the loss of your freedom. Specifically, the Sixth Amendment to the United States Constitution gives you the right to a lawyer, and the Supreme Court case of Gideon v Wainwright, 372 U.S. 335 (1963) provides state appointed lawyers (public defenders) for indigent people. Especially with offenses like this one that involves a mandatory prison sentence.

Is Armed Violence a Misdemeanor or a Felony?

Armed Violence is a felony with a special sentencing range. A felony is a crime that is punishable by more than 1 year of imprisonment. 720 ILCS 5/33A-3.

What level of felony is Armed Violence?

Armed Violence is a Class X felony. 720 ILCS 5/33A-3. The order of felonies in Illinois from most to least serious goes: Class X, followed by Class 1, Class 2, Class 3, and then Class 4.

Can I go to prison? What Is the Sentencing Range for Armed Violence?

Generally, Armed Violence has a sentencing range of 15 to 30 years in the Illinois Department of Corrections. 720 ILCS 5/33A-3. However, if you were armed with a gun while delivering a class X amount of drugs or possessing with intent to deliver a class X amount of drugs, then the sentence for this charge would mandatorily run consecutive to the drug delivery charge. That means if you got 5 years on the delivery charge and 15 years on this charge, then you would be looking at a total of 20 years in the Illinois Department of Corrections. 720 ILCS 5/33A-3(d).

Can I get Probation? Is Armed Violence Non-probationable? Is Prison Mandatory?

No, you cannot receive probation on an Armed Violence case. Armed Violence is a Class X Felony with a mandatory prison sentence.

Can I get Court Supervision?

No. Court supervision is not a possible outcome in felony cases. 730 ILCS 5/5-6-1(c).

What Is the Extended Sentencing Range for an Armed Violence 730 ILCS 5/5-4.5-25(a)?

Under Illinois’ extended sentencing guidelines, if you have been convicted in the last 10 years of a felony, and that felony was of the same class or worse when compared to your current charge, then the maximum allowable sentence is doubled. 730 ILCS 5/5-4.5-25(a). That means that the extended sentencing range for a Class X Armed Violence would be 30 to 60 years in the Illinois Department of Corrections if you have a prior class X conviction.

What percentage of your prison sentence do you serve for an Armed Violence 730 ILCS 5/3-6-3?

Armed Violence is a 50% sentence. Illinois’ Truth-In-Sentencing law states that: “the rules and regulations shall provide that a prisoner who is serving a term of imprisonment shall receive one day of sentence credit for each day of his or her sentence of imprisonment.” 730 ILCS 5/3-6-3(a)(2.1). So if you received the imprisonment term of 20 years in the Illinois Department of Corrections, the most you would actually serve is 10 years assuming you do not receive any other credits. However, if the Court finds that the conduct that resulted in the conviction for armed violence resulted in great bodily harm to a victim, then Armed Violence becomes an 85% sentence. 730 ILCS 5/3-6-3(a)(2)(iii). That same 20-year sentence would now result in 17 actual years instead of 10.

How Long Is the Mandatory Supervised Release or Parole Period for an Armed Violence?

The Mandatory Supervised Release period is 18 months for someone sentenced to the Illinois Department of Corrections on a class X felony of Armed Violence. 730 ILCS 5/5-8-1(d)(1.5).

How To Keep a Conviction Off Your Record?

There are several ways to keep an Armed Violence conviction off your criminal record. Here are some of those ways:

How to Win a case at Trial?

At trial, the State must show that 1) you were actively armed and 2) that you committed the other felony crime. It is not enough for the State to prove one or the other. They have to prove both! If challenging that you were actively armed is the better defense, then you may want to focus on that. If challenging the other felony crime is a better defense, then you may want to focus on that. Your trial strategy should be clear for the jury or judge to understand.

Please note: A conviction for armed violence can be based either on the predicate charged offense or a lesser included offense of the predicate charged offense. So, if you are charged with having a gun and possessing drugs with intent to deliver, it is not enough that you beat the “with intent to deliver” portion. Possession of a Controlled Substance is a lesser included felony of Possession with Intent to deliver. You can still be found guilty of Armed Violence for having the gun and just possessing the drugs. A good case to explain this issue is People v. Simmons, 93 Ill.2d 94 (1982).

Self-Defense and/or Necessity. If you do not have a FOID or Conceal Carry license, and you momentarily grabbed a gun for the purposes of self-defense, then you should take a look at a recent court case captioned People v. Crowder, 2018 IL App (1st) 161226. In that case, 3 individuals attacked the defendant and the defendant’s father. The defendant grabbed his father’s gun and shot up in the air to scare the 3 assailants and to buy time and get away. The police ended up charging the defendant with Agg. UUW. The Appellate Court overturned the conviction, holding that both self-defense and necessity are valid defenses to unlawful possession of gun cases. Another good case on this issue is People v. Gullens, 2017 IL App (3d) 160668.

How to Win a case at Motion?

If there was some issue with the recovery of the gun in your case, a motion to suppress might be the solution. A criminal defense attorney can challenge the lawfulness of police conduct. If the Court finds that police failed to follow proper procedure, the Court can prevent the State from using what was recovered from the improper search. This could result in a dismissal of your case.

How to avoid a conviction by a plea agreement (Reduction on the Charge)?

It would be a win if the State splits the Armed Violence charge and wants you to plead guilty to Aggravated Unlawful Use of a Weapon and the other felony crime. Although you would be pleading guilty to two crimes instead of one, Armed Violence has a mandatory sentence of 15 years. Splitting the case into two charges instead of one may reduce your maximum sentence to something considerably lower. 6 years instead of 15 years is a win in my book.

Other Firearm Guides

If you are looking for information about:

• FOID Act Violation cases, then check out our guide to FOID Act Violation cases in Illinois.
• Unlawful Possession of a Weapon by a Felon, then check out our guide to Unlawful Possession of a Weapon by a Felon cases in Illinois.
• Unlawful Use of a Weapon or Aggravated Unlawful Use of a Weapon, then check out our guide to UUW cases in Illinois.
• Armed Habitual Criminal, then check out our guide to Armed Habitual Criminal cases in Illinois.

Hire Illinois Firearm Criminal Defense Lawyer Clyde Guilamo

I offer this guide as free legal education. #notlegaladvice. If you found this article helpful, then consider leaving us a review on Google! And if you have specific questions about your case, give me a call.