APPEAL from the Circuit Court of Livingston County; the Hon.
STEPHEN ADSIT, Judge, presiding.
MR. JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:
On September 28, 1972, defendant Michael Spaulding was indicted for the crime of escape, the indictment alleging that defendant, while serving two concurrent 2- to 5-year prison terms at the State Penitentiary in Pontiac, did knowingly and intentionally escape from that institution in violation of Illinois Revised Statutes, chapter 108, paragraph 121. On September 29, 1972, defendant appeared at court with appointed counsel and entered a plea of guilty pursuant to a plea-bargaining agreement and was sentenced for a term not less than 1 nor more than 2 years in the State Penitentiary, said sentence to commence on the expiration of the term he was serving at the time of his alleged escape.
In this direct appeal, appellant contends: (1) that his sentence should be modified to conform to the new Unified Code of Corrections and (2) that the statute under which he was convicted was unconstitutional because it denied him the equal protection of the law.
• 1 Defendant was indicted on September 28, 1972, and entered a plea of guilty to the charge of escape on September 29, 1972. The Unified Code of Corrections took effect January 1, 1973, and provides in part:
"If the offense being prosecuted has not reached the sentencing stage or a final adjudication, then for purposes of sentencing the sentences under this Act apply if they are less than under the prior law upon which the prosecution was commenced." Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1008-2-4.
This court has held that the "final adjudication" provision of the Unified Code of Corrections makes the Code applicable to cases on direct appeal. (People v. Lobb, 9 Ill. App.3d 650, 292 N.E.2d 750; People v. Mize, 9 Ill. App.3d 647, 292 N.E.2d 731.) Since this case is on direct appeal from the judgment of the circuit court, the provisions of the Unified Code are applicable. The statutory provisions which govern this case are as follows:
Escape or misconduct by inmates Penalty.
"Whoever being a prisoner in the Illinois State Penitentiary escapes or attempts to escape therefrom, or escapes or attempts to escape while in the custody of an employee of the Illinois State Penitentiary, or holds or participates in the holding of any person as a hostage by force, threat or violence, or while participating in any disturbance, demonstration or riot causes, directs or participates in the destruction of any property, is guilty of a felony and, upon conviction thereof, shall be imprisoned in the penitentiary not less than one year and not more than ten years; provided, however, that any sentence of imprisonment imposed upon conviction of any prisoner for any violation of this section shall not commence until the expiration of the term which the prisoner was serving at the time of the violation." Ill. Rev. Stat. 1971, ch. 108, par. 121, as amended by act approved Aug. 1, 1961. L. 1961, p. 2549.
"Enforcement of Discipline Escape.
(a) A committed person who escapes or attempts to escape from an institution or facility of the Adult Division, or escapes or attempts to escape while in the custody of an employee of the Adult Division, or holds or participates in the holding of any person as a hostage by force, threat or violence, while participating in any disturbance, demonstration or riot, causes, directs or participates in the destruction of any property is guilty of a Class 2 felony. A committed person who fails to return from furlough is guilty of a Class 3 felony." Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1003-6-4.
"Sentence of Imprisonment for Felony.
(a) A sentence of imprisonment for a felony shall be an indeterminate sentence set by the court under this Section.
(b) The maximum term shall be set according to the following limitations:
(3) for a Class 2 felony, the maximum term shall be any term in excess of one year ...