People v. Johnson

Defendant was convicted, after bench trial, of aggravated robbery as a lesser-included offense of armed robbery, and other offenses. Evidence adduced at trial does not support defendant’s conviction for aggravated robbery beyond a reasonable doubt. State requested a lesser-included offense conviction of “robbery” only, never mentioning aggravated robbery. Convicting Defendant of the uncharged offense of aggravated robbery that is not a lesser-included offense of the charged offense of armed robbery violates defendant’s “fundamental due process right” and affects fairness of Defendant’s trial. Aggravated robbery is not a lesser-included offense of armed robbery.  Thus, conviction reduced to simple robbery, and remanded for resentencing.  (REYES and PALMER, concurring.)