to smoothly which held that when the general heard it was returned by the jury for murder it was to be interpreted as intentional whether that change with smith and bailey and  because at that time residential burglary was not a forcible felony that could be used as a predicate for felony murder so it was a ploy that was used to get around that problem  would as a result of that of his consecutive and what i'm submitting to the court is that in this case as a matter of law based on sneddon bailey there was only a felony murder in this case which means that the predicate felony should be  d guilty of intentional murder in the situation presented by this case and because as a result of the decisions of bailey and smith the so in smith detailing what the supreme court said was that if the defendant had asked for separate verdict forms and the trial court denied that request that and now you're saying that you can attack the felony murder independently even though it was a default fine no your thank you for the question so concerned that i can  verdict must be interpreted is a felony murder in the smith and billy situation is not really the default but it is as a matter of law that's what it needs to be but the the end result is the same which just wor saying that the predicate felony in this case needs to be the one that was charged even if you get because in this case that there was no robbery of the purse that was charged he got the consecutive sentence if indeed that was the underlying felony for the felony murder then a thirty year consecutive sentence would have to go ok so that's kind of the general idea here of what's going on with respect to defend th get because this is a brought up on collateral review this issue i think the defendant has to take in order under section you know what if you want he has to take an alleged causing prejudiced in order to open and in this case the record is clear the prosecutor the state's attorney specifically stated this early on when prior to trial in this case to allow defended to prepare a defense and so in this case i think that to be embarrassed and in this case under these facts and circumstances that we have and the fact that you know fact even though he's not calling  simply because they can't sentence them on it and what most people would consider a more serious form of them were intentional were more serious than telling because we all know that  what the defended did anything other than that it's just the specific form of that act or murder and how they are then going to be able to be sentence it's all procedural i don't think it  court is satisfied that the jury was able to find those elements beyond a reasonable doubt here in the robbery of the tavern was not but there's nothing to show and the verdict is he being interpreted as a felony and that is why it's a substantive retroactive application in this case because it's not just procedural a actual it is this can occur in different ways and one of them is that what was considered to give crime is no longer a crime and that is a situation in on the general principle that it's to found that what had been considered to be a viable offense due to a supreme court decision no longer became a viable viable eyes and we have the same situation of law of those offenses that means that those offenses have been removed from the question as a matter of law just as the an offense was removed from the equation and as a matter of sentences from you question the same way that miller remove certain sentences from from the equation and miller as we know applies retroactive