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People v. Mckemie

ILLINOIS APPELLATE COURT — THIRD DISTRICT


JULY 20, 1973.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

ROBERT J. MCKEMIE, DEFENDANT-APPELLANT.

APPEAL from the Circuit Court of Kankakee County; the Hon. WAYNE P. DYER, Judge, presiding.

MR. PRESIDING JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:

Defendant Robert J. McKemie was sentenced, pursuant to his plea of guilty to the crime of burglary, to a term of not less than 2 years nor more than 5 years in the Illinois Department of Corrections by the Circuit Court of Kankakee County.

• 1 On appeal to this court, defendant Robert J. McKemie contends that the minimum term of his sentence should be reduced in accordance with the Illinois Unified Code of Corrections. It has been noted that the provisions of the Illinois Unified Code of Corrections is in fact applicable to cases on appeal if the sentences under the new act are less than under the prior law pursuant to which prosecution was commenced. (Ill. Rev. Stat., 1972 Supp., ch. 38, § 1008-2-4.) See also: People v. Harvey, 53 Ill.2d 585, 294 N.E.2d 269.)

• 2 Burglary is now classified as a Class 2 felony and the Illinois Unified Code of Corrections provides that a minimum term of the sentence for a Class 2 felony shall not be greater than one-third of the maximum term actually imposed. (Ill. Rev. Stat., 1972 Supp., ch. 38, § 19-1(b) and § 1005-8-1(c)(3)). The minimum term of 2 years is in excess of one third of the maximum term of 5 years in the present cause. We have previously indicated in People v. Kovacivich, 10 Ill. App. 797, 295 N.E.2d 33, that where a sentence fails to meet the 1 to 3 ratio required by the Code of Corrections for a Class 2 felony, the minimum sentence should be reduced.

• 3 The minimum sentence of defendant Robert J. McKemie should, therefore, be reduced to a term of one year and eight months. We have examined the record and find no other reversible error, nor does defendant contend that there is any such error. Accordingly, we hereby affirm the conviction of Robert J. McKemie in this cause, but modify his sentence to an indeterminate term of not less than one year and eight months, which is fixed as the minimum duration of imprisonment, and not more than five years, which is fixed as the maximum duration of imprisonment or until defendant is discharged in due course of law.

Affirmed as modified.

DIXON and SCOTT, JJ., concur.

19730720

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