People v. McGee

Defendant was convicted, after jury trial, of armed habitual criminal (AHC) and unlawful use of a weapon by a felon (UUWF). A conviction under the portion of the aggravated unlawful use of a weapon (AUUW) statute found unconstitutional under People v. Aguilar and People v. Burns cannot stand where the Defendant's predicate felony as alleged in the charging document is based on a conviction for a UUW or AUUW offense that is facially unconstitutional under Aguilar. A prior felony conviction is not an element of offense of AUUW, but a factor to be used in enhancing the sentence, and the Defendant's predicate felony drug conviction was not a valid constitutional basis to criminalize Defendant's firearm possession. As State alleged 2 prior felony convictions, and one conviction is fatally defective, State failed to prove essential element of offense of AHC. As to other count charging Defendant with possession of firearm after having been previously convicted of felony offense, Defendant had a constitutionally valid qualifying felony conviction and thus State proved all elements of the merged conviction for UUWF.(SIMON and HYMAN, concurring.)