APPEAL from the Circuit Court of Vermilion County; the Hon.
JAMES K. ROBINSON, Judge, presiding.
MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
The defendant Wayne Gibson was indicted for the offense of involuntary manslaughter in that on April 29, 1974,
"* * * he did knowingly and without lawful justification kill Tracy Fink by recklessly driving a car at a high rate of speed and in the wrong lane of traffic and off the public roadway, such action being of a nature likely to cause death or great bodily harm to some individual * * *."
The provisions of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 9-3) defined involuntary manslaughter and reckless homicide as follows:
"(a) A person who kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly.
(b) If the acts which cause the death consist of the driving of a motor vehicle, the person may be prosecuted for reckless homicide of if he is prosecuted for involuntary manslaughter, he may be found guilty of the included offense of reckless homicide.
(c) Sentence. (1) Involuntary manslaughter is a Class 3 felony. (2) Reckless homicide is a Class 4 felony."
Upon his plea of guilty entered pursuant to a negotiated plea agreement and accepted after compliance by the trial court with the requirements of Supreme Court Rule 402, the defendant was convicted for the offense of involuntary manslaughter on September 23, 1974. A presentence investigation was conducted, and a report was prepared. A sentencing hearing was held on November 14, 1974. The court was advised of the terms of the plea agreement which included a recommendation from the State that the defendant be sentenced to a term not to exceed 5 years' probation with certain conditions attached. The trial court rejected that proposal and imposed a term of 1 to 10 years' imprisonment.
A direct appeal was filed. During the pendency of the appeal, the Criminal Code provisions governing involuntary manslaughter and reckless homicide were amended and now provide:
"(a) A person who unintentionally kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly, except in cases in which the cause of the death consists of the driving of a motor vehicle, in which case the person commits reckless homicide.
(b) Sentence. (1) Involuntary manslaughter is a Class 3 felony. (2) Reckless homicide is a Class 4 felony." (Ill. Rev. Stat. 1975, ch. 38, par. 9-3).
The amended provisions became effective on October 1, 1975.
With leave from this court, the defendant abandoned his original argument on appeal and filed a supplemental brief which presents the question to be decided here. The sole issue pursued on this appeal is whether the defendant's conviction for involuntary manslaughter should be reduced to reckless homicide and the cause remanded for resentencing as the result of the amendment to the Criminal Code provisions dealing with involuntary manslaughter and reckless homicide. The Unified Code of Corrections provides, in part, as follows:
"Prosecution for any violation of law occurring prior to the effective date of this Act is not affected or abated by this Act. 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 ...