Thus the penalties for armed robbery, rape and armed violence when a gun is used are the same. Instructive as to the defendants' common contention in these consolidated cases is the recent decision by the Fifth Division of this court in the case of People v. Jones (1980), 89 Ill. App.3d 1030, 412 N.E.2d 683. In Jones the defendant was convicted, inter alia, of armed robbery and armed violence since the latter was predicated on the armed robbery conviction.
• 3 Defendant next asserts that, where multiple convictions are tainted by improper sentencing, the cause must be remanded for resentencing. People v. Jones (1980), 89 Ill. App.3d 1030, relied upon by the defendant to support this proposition, is distinguishable on its facts. In Jones, the trial court stated that the three crimes for which defendant was convicted were Class X offenses and sentenced defendant to three concurrent nine-year terms of imprisonment.
• 3 The judgments of conviction for armed violence entered under counts 14 and 18, for which sentences were not imposed, must also be vacated. Each of these counts constitute double enhancement as the predicate offenses were also enhanced by the presence of a weapon. ( People v. Haron (1981), 85 Ill.2d 261, 277-78, 422 N.E.2d 627, 634; People v. Jones (1980), 89 Ill. App.3d 1030, 1034, 412 N.E.2d 683, 687, appeal denied (1981), 85 Ill.2d 559; see Simpson v. United States (1978), 435 U.S. 6, 14, 55 L.Ed.2d 70, 78, 98 S.Ct. 909, 914.) The sentence imposed for armed violence under count 19 must be vacated as a judgment of conviction was not entered for the offense there charged.
"Several recent Illinois decisions have considered whether a conviction may be imposed for both armed violence and for the offense underlying the armed violence. ( People v. Adams (1980), 91 Ill. App.3d 1059, 415 N.E.2d 610; People v. Lavoy (1980), 91 Ill. App.3d 639, 415 N.E.2d 487; People v. Crawford (1980), 90 Ill. App.3d 888, 414 N.E.2d 25; People v. Jones (1980), 89 Ill. App.3d 1030, 412 N.E.2d 709.) Each has held that, as armed violence is defined as the commission of a felony while armed with a dangerous weapon, the single act of committing the felony by the use of a dangerous weapon gives rise to both offenses.
It is well recognized in Illinois that, while multiple convictions and concurrent sentences may result from offenses which arise from separate and distinct acts if the offenses are also not lesser included offenses ( People v. Vriner (1978), 74 Ill.2d 329, 385 N.E.2d 671, cert. denied (1979), 442 U.S. 929, 61 L.Ed.2d 296, 99 S.Ct. 2858; People v. King (1977), 66 Ill.2d 551, 363 N.E.2d 838, cert. denied (1977), 434 U.S. 894, 54 L.Ed.2d 181, 98 S.Ct. 273; People v. Higgins (1979), 71 Ill. App.3d 912, 390 N.E.2d 340), multiple convictions and concurrent sentences may not result from offenses which arise from a single act and, as such, a defendant can be convicted and sentenced only on the more serious offense. People v. Adams (1980), 91 Ill. App.3d 1059, 415 N.E.2d 610; People v. Lavoy (1980), 91 Ill. App.3d 639, 415 N.E.2d 487; People v. Crawford (1980), 90 Ill. App.3d 888, 414 N.E.2d 25; People v. Jones (1980), 89 Ill. App.3d 1030, 412 N.E.2d 709. In King, the Illinois Supreme Court reaffirmed the necessity of the general rule to avoid the prejudice which results to a defendant where more than one offense is carved from the same physical act or where a defendant is convicted of multiple offenses arising from multiple acts but some of the offenses are, by definition, lesser included offenses.
convictions based on "precisely the same physical act.") Since mail fraud, wire fraud, and official misconduct were all Class 3 felonies, the official misconduct convictions should be vacated as they are based on the more general statute. People v. Jones, 89 Ill. App. 3d 1030, 1034 (1980).¶ 45 III. CONCLUSION
( 91 Ill.2d 164, 170.) Accordingly, because armed robbery is the more serious offense ( People v. Jones (1980), 89 Ill. App.3d 1030, 1034, 412 N.E.2d 683), the conviction and sentence for armed violence must be vacated. • 6 Defendant next contends that the trial court erred in enhancing defendant's sentence on the basis of perjury perceived by the judge to have been committed by defendant during the trial.
Our review of this record indicates that the trial judge was not influenced by the three vacated sentences. He based his sentencing on: the heinous nature of the crime; defendant's criminal record which included two prior separate Class X felony convictions by a 21-year-old; a probation unsatisfactorily terminated by defendant; defendant's lack of rehabilitative potential; and the absence of mitigating factors. Moreover, the sentences imposed for each of the jury's convictions fall within the permissible range of sentences allowed by statute ( People v. Jones (1980), 89 Ill. App.3d 1030, 412 N.E.2d 683). We find no need to remand this cause for resentencing.
( People v. Simmons (1982), 93 Ill.2d 94, 98, 442 N.E.2d 891.) In similar circumstances the court in People v. Hert (1981), 95 Ill. App.3d 871, 874, 420 N.E.2d 813, and People v. Green (1980), 83 Ill. App.3d 982, 986-87, 404 N.E.2d 930, set aside defendant's convictions for armed violence and we do so here. See People v. Crawford (1980), 90 Ill. App.3d 888, 890, 414 N.E.2d 25; People v. Jones (1980), 89 Ill. App.3d 1030, 1033-34, 412 N.E.2d 683, appeal denied (1981), 85 Ill.2d 559. • 4 Remandment for resentencing will not be required in this case ( cf. People v. Hert; People v. Green). Defendant was convicted of four Class X felonies (he does not assert error as to the convictions for attempted murder under count III or home invasion under count II of the information) and was sentenced to a single six-year term of imprisonment. That was the minimum sentence allowed for each of these Class X offenses (Ill. Rev. Stat. 1981, ch. 38, par. 1005-8-1(a)(3)) and, if remanded for a new sentencing hearing, the trial court could not impose lesser sentences.
We also note that the trial court imposed greater sentences for the armed robbery and attempt murder offenses than it imposed for aggravated battery. Unlike People v. Jones (1980), 89 Ill. App.3d 1030, 412 N.E.2d 683, where the court mistakenly believed aggravated battery was a Class X felony and imposed three concurrent nine-year terms for armed robbery, aggravated battery and armed violence, or People v. Deal (1979), 69 Ill. App.3d 74, 387 N.E.2d 21, where the appellate court reversed the more serious of defendant's two convictions, there is nothing in this record to suggest that the trial court was influenced by the aggravated battery conviction and sentence in imposing the sentences for attempt murder and armed robbery. Accordingly, while the judgment of defendant's conviction for aggravated battery must be vacated, we affirm the sentences on the remaining convictions of armed robbery and attempt murder.