APPEAL from the Circuit Court of Madison County; the Hon. JOHN
GITCHOFF, Judge, presiding.
MR. JUSTICE CARTER DELIVERED THE OPINION OF THE COURT:
The defendant was convicted in the Circuit Court of Madison County of attempted murder and attempted armed robbery. He was sentenced to serve concurrent terms of 17 to 20 years for attempted murder and 3 to 6 years for attempted armed robbery. On direct appeal this court affirmed the convictions but vacated the sentences and remanded for resentencing pursuant to the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1001-1-1 et seq.). People v. Hammonds, 12 Ill. App.3d 340, 297 N.E.2d 748.
On July 18, 1973, the defendant was resentenced by the Circuit Court of Madison County to concurrent terms of 8 to 17 years for attempted murder and 2 to 6 years for attempted armed robbery. The circuit court did not hold an evidentiary hearing of any type before resentencing the defendant. The court merely took cognizance of article 8 of chapter V of the Unified Code of Corrections and modified the sentences accordingly. The defendant was represented by the Public Defender at the time of the resentencing.
The defendant appeals from the resentencing order and alleges that: (1) he was not sentenced in compliance with the Unified Code of Corrections, and (2) convictions for both offenses cannot stand because both alleged offenses arose from the same conduct.
No Illinois case has been found in which the court considered the propriety of a resentencing procedure. It seems obvious, however, that the sentencing procedures of the Unified Code of Corrections should apply to a resentencing as directed by our prior opinion. In the prior opinion the court held: "* * * and remand for sentencing under the Unified Code of Corrections. Ill. Rev. Stat. ch. 38, § 1001-1-1 et seq." 12 Ill. App.3d at 346.
The Circuit Court of Madison County failed to comply with several provisions of the Code when the defendant was resentenced. Section 5-3-1 of the Code (Ill. Rev. Stat., ch. 38, par. 1005-3-1) provides that a defendant shall not be sentenced before a written presentence report of investigation is presented to and considered by the court when the defendant is convicted of a felony. In the instant case there is no indication that a presentence report was prepared at any time, and the record does not reflect a waiver by the defendant of that report, as allowed by the Code.
• 1, 2 The State contends that, since the original sentencing of the defendant was prior to the effective date of the Unified Code of Corrections, no presentence investigation was required. The State cited two cases for the proposition that it was not error for the court to refuse to order a presentence investigation in cases in which the defendant was sentenced before the Unified Code of Corrections became effective. (People v. Brezezinski, 15 Ill. App.3d 509, 305 N.E.2d 32; People v. Robinson, 13 Ill. App.3d 506, 301 N.E.2d 55.) In the Robinson case the court held that, even though the Code became effective while the appeal was pending, the cause did not have to be remanded for resentencing merely because a presentence investigation had not been ordered. Neither of the cases cited by the State, however, considered the issue now before the court. In both cases the appellate court considered the propriety of the sentence imposed prior to the Code not the propriety of a resentencing imposed subsequent to the Code. When a felony conviction is remanded for resentencing, section 5-3-1 of the Unified Code of Corrections is applicable whether the original sentencing was prior to or subsequent to the effective date of the Code. The opposite holding would mean that, when a cause in which the original sentencing was prior to the Code is remanded for sentencing in compliance with the Code, it actually would be remanded for sentencing in partial compliance with the Code. Such a decision is not supported by logic and reasoning.
Section 5-4-1 of the Code provides that:
"(a) After a determination of guilt a hearing shall be held to impose the sentence. At the hearing the court shall:
(1) consider the evidence, if any, received upon the trial;
(2) consider any presentence report;
(3) consider evidence and information offered by the parties in aggravation and mitigation;
(4) hear arguments as to sentencing alternatives; and
(5) afford the defendant the opportunity to make a statement in ...