¶1dissenting:
¶2I dissent. While the majority is correct in its recitation of the law that, in general, the mere failure to include a statutory citation in an otherwise proper indictment does not automatically render the indictment void, the factual posture of this case is sufficiently unique so as to take it out of the realm of the general. When Edmonds was informed of the crime for which he was being charged, he was done so in an indictment which specifically charged him with a violation of a Class I felony. He was convicted, after the trial court granted a motion to amend the indictment, of a Class X felony. By definition, the punishment for a Class X felony exceeds that of a Class I felony. Since the indictment did not inform Edmonds that he was being charged with the violation of a Class X felony at a point in the process before he made his decision whether or not to go to trial, I believe the amendment to the indictment was substantive and not merely a formality, as the majority has concluded. As support for its conclusion, the majority holds that Edmonds should have known that, even though the statute cited in the original draft of the indictment was for a different crime, he could have been punished in the more severe way because of the language in the indictment. The indictment used descriptive language that the alleged crime took place “on a public way within 1000 feet of the real property comprising any school, regardless of the time of year.” The majority holds that the presence of that language in the indictment put Edmonds on notice of the possibility that he could be punished for violation of a Class X felony, even though the indictment specifically informed him he was facing a Class I charge.
¶3The constitution and statutes of this state provide, of course, that no person shall be convicted of an offense which he has not been charged with having committed. People v. Lewis, 83 Ill. 2d 296, 300 (1980). This is not merely a technical defect in the indictment or procedural formality. I believe the error of not identifying the statute under which Edmonds was ultimately convicted is substantive. Where an accused is charged with a single offense, he cannot be convicted of an offense that was not charged unless the offense of which he is found guilty is a lesser included offense of the one charged. People v. Schmidt, 126 Ill. 2d 179, 183 (1988), citing Lewis, 83 Ill. 2d at 300.