20 October 2000

____________________________________________________________________________________

PRESIDING JUSTICE COOK delivered the opinion of thecourt:

The charges in this case stem from a beating defendant,Jerry Lee Foster, gave to Vickie Talley, his cohabitant. In theearly morning hours of May 2, 1999, Talley was lying on theliving room couch of the couple's home. Both she and Foster hadbeen drinking during an earlier family barbeque. Foster attempted to talk to Talley as she lay on the couch, but shedeclined. Foster then grabbed Talley's wrist and bent herfingers backward. As she rose, he punched her in the nose,breaking it. As Talley headed toward the bathroom, Foster struckher in the back of the head.

Foster was charged in five counts. Count I allegedaggravated battery, a Class 3 felony, based on the punch in theface resulting in the broken nose (720 ILCS 5/12-4(a), (e) (West1998). Count II, where the jury entered a verdict of not guilty,alleged unlawful restraint, a Class 4 felony (720 ILCS 5/10-3(West 1998). The next three counts charged Foster with domesticbattery--subsequent offense felony, a Class 4 felony (720 ILCS5/12-3.2(a)(1), (b) (West 1998). Count III was based on thepunch in the face and the broken nose. Count IV was based on thegrabbing of the wrist and twisting it. Count V was based on thepunch in the back of the head. Counts III to V each referred totwo prior misdemeanors and two prior felonies.

Foster was sentenced to five years on count I and anextended term of six years on each of counts III to V, all to runconcurrent to one another.

Foster first argues that his convictions on counts Iand III cannot stand because they are all predicated upon thesame physical act, a single punch to Talley's nose. See Peoplev. King, 66 Ill. 2d 551, 566, 363 N.E.2d 838, 845 (1977). TheState does not disagree but argues that count III, upon whichFoster received a six-year sentence, should be allowed to stand,and count I, upon which Foster received a five-year sentence,should be vacated, even though count I involved a Class 3 felonyand count III involved only a Class 4 felony. Cf. People v.Olson, 128 Ill. App. 3d 560, 563, 470 N.E.2d 1176, 1179 (1984)(only the conviction for the most serious offense can stand). Wehave previously held that in the unusual situation where thetrial court assigns a higher sentence to the offense given a lessserious legislative classification, the conviction and sentencefor the offense with the highest sentence should stand. Peoplev. Lee, 311 Ill. App. 3d 363, 373, 724 N.E.2d 557, 565 (2000). In the present case, however, the six-year sentence on count IIIwas an extended sentence. Extended sentences are available onlyfor "the class of the most serious offense" of which the offenderwas convicted. (Emphasis added.) 730 ILCS 5/5-8-2(a) (West1998). The extended sentence itself was improper here becauseClass 4 was not the class of the most serious offense of whichFoster was convicted. People v. Jordan, 103 Ill. 2d 192, 205-06,469 N.E.2d 569, 575 (1984). Accordingly, there can be no argument under Lee that count III was the most serious offensebecause of the greater sentence. Foster's conviction for countIII must be vacated.

The State next argues that the remaining extended-termsentences may be upheld because they do not involve relatedcourses of conduct. In People v. Coleman, 166 Ill. 2d 247, 255-56, 652 N.E.2d 322, 326 (1995), the Supreme Court of Illinois,noting the rule that an extended-term sentence may only beimposed for the conviction within the most serious class, considered whether the consolidation of unrelated charges at a plea andsentencing hearing restricts the sentencing alternatives thatwould otherwise be available in the case of a defendant convictedof multiple, unrelated criminal acts in separate prosecutions,concluding that it did not. This court subsequently determinedthat the appropriate test to determine whether offenses arisefrom unrelated courses of conduct for purposes of extended-termsentencing is the least restrictive test, the "multiple acts"test of People v. King. People v. Bell, 313 Ill. App. 3d 280,285, 729 N.E.2d 531, 535 (2000). Under that test, offenses arisefrom an unrelated course of conduct whenever offenses are supported by more than one physical act, unless one offense is anincluded offense. People v. King, 66 Ill. 2d 551, 566, 363N.E.2d 838, 845 (1977) (the one-act-one-crime test).

In applying the one-act-one-crime test, it is possibleto find more than one act in almost every case. For example,when one individual strikes another, it may be possible toidentify the clenching of the fist, the drawing back of the arm,and the forward movement of the fist as separate acts. The sameblow may break the victim's jaw, twist the victim's back, andbreak the victim's arm when he falls to the ground. The factorof time is an additional complication. When a defendant unlawfully restrains an individual at 10:01, 10:02, and 10:03, arethere three separate "acts" (or perhaps 180 separate acts if welook at each second)? A realistic view of the one-act-one-crimerule must be applied to comply with Coleman. The offenses inColeman involved different victims, locations, dates and criminalobjectives; thus, the offense clearly involved unrelated coursesof conduct. People v. Strickland, 283 Ill. App. 3d 319, 324, 668N.E.2d 1201, 1203 (1996). We should not apply a rule whichdefeats the legislative direction that there be an extendedsentence only for the class of the most serious offense. 730ILCS 5/5-8-2(a) (West 1998).

Here, application of the multiple acts test demonstrates that Foster's conviction for aggravated battery and hisconvictions for domestic battery--subsequent offense involved thesame course of conduct. Foster's acts in twisting Talley's hand,punching her nose, and striking her in the back of her head wereseparated only by moments. They were perpetrated on the samevictim, at the same location, and were all acts of battery. There were no intervening events. Foster was engaged in a singlecourse of conduct, the beating of his girlfriend. Extended-termsentencing was therefore available only for the most seriousclass of offense, count I, the Class 3 aggravated battery. Wevacate that portion of the sentences imposed for Foster's convictions on count IV and count V which exceed the nonextendedstatutory maximum sentence of three years' imprisonment.

The State concedes that the trial court did not hold ahearing before assessing $200 in counsel fees against Foster inconformity with statutory requirements (725 ILCS 5/113-3.1 (West1998)) and that this part of the trial court's order must therefore be vacated. We vacate the trial court's payment order andremand for further proceedings. People v. Johnson, 297 Ill. App.3d 163, 165, 696 N.E.2d 1269, 1270 (1998).

Finally, Foster contends that his fine under theViolent Crime Victims Assistance Act (Victims Assistance Act)(725 ILCS 240/10(c)(1) (West 1998)) was improper because it wasnot levied by judicial order. Foster argues that Public Act 89-688 (Pub. Act 89-688,