People v. Shelton

567 N.E.2d 680, 208 Ill. App. 3d 1094, 153 Ill. Dec. 722, 1991 Ill. App. LEXIS 231
CourtAppellate Court of Illinois
DecidedFebruary 21, 1991
Docket4-90-0485
StatusPublished
Cited by7 cases

This text of 567 N.E.2d 680 (People v. Shelton) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Shelton, 567 N.E.2d 680, 208 Ill. App. 3d 1094, 153 Ill. Dec. 722, 1991 Ill. App. LEXIS 231 (Ill. Ct. App. 1991).

Opinion

JUSTICE STEIGMANN

delivered the opinion of the court:

After a jury trial, defendant, Gary Eugene Shelton, was convicted of burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 1). The presentence report prepared for defendant’s sentencing hearing revealed that he had been convicted of burglary in both 1983 and 1984. At the sentencing hearing, the court asked the prosecutor about the applicability of section 5 — 5—3(cX8) of the Unified Code of Corrections (Unified Code) (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3(cX8)), which provides that under certain circumstances a defendant convicted of a Class 2 felony, such as burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 1(b)), shall be sentenced as a Class X offender. The prosecutor admitted that he had not previously considered that statutory provision and stated it appeared to him that defendant was eligible to be sentenced as a Class X offender under that section. Defendant’s counsel did not address the applicability of section 5 — 5—3(cX8) of the Unified Code, but instead argued for a minimal sentence. The trial court concluded that it was required by section 5 — 5— 3(cX8) of the Unified Code to sentence defendant as a Class X felon and sentenced him to 10 years in the Illinois Department of Corrections. The court also ordered that sentence to run consecutively to the sentence imposed upon defendant for his conviction of an unrelated felony offense.

On appeal, defendant challenges only his sentence, arguing the court erred when it (1) sentenced him as a Class X offender under section 5— 5 — 3(cX8) of the Unified Code, and (2) ordered his sentence to be served consecutively. We reverse and remand for a new sentencing hearing.

Section 5 — 5—3(cX8) of the Unified Code reads as follows:

“When a defendant, over the age of 21 years, is convicted of a Class 1 or Class 2 felony, after having twice been convicted of any Class 2 or greater Class felonies in Hlinois, and such charges are separately brought and tried and arise out of different series of acts, such defendant shall be sentenced as a Class X offender. This paragraph shall not apply unless (1) the first felony was committed after the effective date of this amendatory Act of 1977; and (2) the second felony was committed after conviction on the first; and (3) the third felony was committed after conviction on the second.” (Ill. Rev. Stat. 1989, ch. 38, par. 1005-5-3(c)(8).)

The plain language of this section requires the court and the parties to focus on the date the first and second felonies were committed, not the dates upon which defendant was convicted. However, in the present case, no information was ever presented to the trial court, either through testimony, representations of counsel, or the presentence report, to indicate when defendant committed the burglaries of which he was convicted in 1983 and 1984. The only information before the court regarding these prior convictions was contained in the presentence report which, regarding these burglaries, read in its entirety as follows:

“2/22/83 Burglary 4/6/83 Plea of guilty (83 — CF—66) entered.
5/5/83 Sentenced to thirty (30) months probation; $500.00 fine; $50.00 surcharge; $70.00 costs; six (6) months imprisonment.
10/31/85 Petition for Revocation filed as Defendant failed to pay his fine, costs, and surcharge by May 5,1985.
11/6/85 Petition dismissed.
12/5/85 Discharged.
* * *
4/22/84 Burglary 7/12/84 Plea of guilty
(84 — CF—117) entered.
8/28/84 Sentenced to ZVz years Department of Corrections.
5/23/86 Released on parole.
5/26/88 Discharged.”

The dates preceding the word “Burglary” in each of these entries— February 27, 1983, and April 22, 1984 — may be the dates on which these burglaries were committed, but they also may be the dates on which defendant was arrested for these crimes or the dates on which he was formally charged with these crimes. Accordingly, because this record does not provide the dates on which the 1983 and 1984 burglaries were committed, the trial court erred in sentencing defendant as a Class X offender under section 5 — 5—3(c)(8) of the Unified Code, his sentence must be reversed, and the cause remanded for resentencing. See People v. Parks (1988), 168 Ill. App. 3d 978, 986-87, 523 N.E.2d 130, 136.

Defendant further argues that if we determine that his sentence as a Class X offender must be reversed and the cause remanded for resentencing, double jeopardy principles preclude the trial court from reimposing a Class X sentence upon remand. In support of this argument, defendant cites People v. Hamilton (1990), 198 Ill. App. 3d 108, 555 N.E.2d 785, a decision of the Second District Appellate Court. However, for the reasons that follow, we find that two decisions of the First District Appellate Court, which are in disagreement with Hamilton on this point, are more persuasive. See People v. Washington (1990), 195 Ill. App. 3d 520, 552 N.E.2d 1067; People v. Brooks (1990), 202 Ill. App. 3d 164, 559 N.E.2d 859.

In Hamilton, the court considered the defendant’s claim that double jeopardy barred his being resentenced as a Class X offender in light of the decision of the United States Supreme Court in Bullington v. Missouri (1981), 451 U.S. 430, 68 L. Ed. 2d 270, 101 S. Ct. 1852. In Bullington, the Court held that the double jeopardy clause of the fifth amendment to the United States Constitution bars the State from seeking the death penalty against the defendant on retrial where, in a death sentencing procedure that resembles a trial on the issue of guilt or innocence, the jury decides against the death sentence after the original conviction. (Bullington, 451 U.S. at 446, 68 L. Ed. 2d at 284, 101 S. Ct. at 1862.) The issue in Hamilton was whether the double jeopardy clause applies to a sentencing proceeding in which the State may prove certain facts that will cause a defendant’s possible sentence range to be elevated beyond the range normally applicable for the crime of which he stands convicted. (Hamilton, 198 Ill. App. 3d at 112, 555 N.E.2d at 787.) The court concluded that the double jeopardy clause did apply to the sentencing procedures which caused Hamilton to be sentenced as a Class X offender because “unlike the normal sentencing proceeding where the majority of facts considered are nonadversarial in nature, the State was required to prove certain facts beyond a reasonable doubt.” (Hamilton, 198 Ill. App.

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Bluebook (online)
567 N.E.2d 680, 208 Ill. App. 3d 1094, 153 Ill. Dec. 722, 1991 Ill. App. LEXIS 231, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-shelton-illappct-1991.