APPEAL from the Circuit Court of Cook County; the Hon. FRANK
B. MACHALA, Judge, presiding.
MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
At the conclusion of a jury trial in the circuit court of Cook County, defendant, Charles Jerrick, was found guilty of attempted robbery (Ill. Rev. Stat. 1977, ch. 38, pars. 8-4, 18-1). The trial court invoked the extended term provision of the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, par. 1005-8-2) and sentenced the defendant to a term of 3 1/3 years to 20 years imprisonment.
On appeal, defendant contends that the sentence imposed must be vacated and the cause remanded for resentencing due to the trial court's failure to comply with the examination and report requirement in the extended term provision of the Unified Code (Ill. Rev. Stat. 1977, ch. 38, par. 1005-8-2).
We agree. Accordingly, we vacate the sentence imposed and remand this cause for a new sentencing hearing.
The pertinent facts disclose that at the conclusion of trial, the jury deliberated and found the defendant guilty of attempted robbery. The trial judge ordered that a written presentence investigation report be prepared (Ill. Rev. Stat. 1977, ch. 38, par. 1005-3-1) and continued the matter for a later sentencing hearing.
When the court reconvened, the State requested that the defendant be sentenced under the extended term provision of the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, par. 1005-8-2). Defense counsel pointed out that section 5-8-2(b) specifically provides that before a defendant is sentenced under the extended term statute, he first must be committed to the Department of Corrections for diagnostic examination. The trial judge responded that he had read the presentence investigation report and also found: (1) that the defendant had inflicted serious bodily injury on the victim of the attempted robbery; and (2) that the defendant presented a continuing risk to the public safety. The trial judge then stated:
"THE COURT: Now, counsel, * * * I can see no purpose whatsoever of having any agency report on anything along these lines when I have made the findings that I have made. That is the way I read it. It makes no sense to me as it now reads, and I wouldn't know what the jail could possibly report to me.
Would you suggest what they might report to me if I sent him there for sixty days, what would I expect or what could I expect?
MR. KUNZ: Your Honor, I am not sure of that. I don't know whether the department has, in fact, certified to the Court that it is prepared even to make the examination which, in my reading of the statute, is required prior to any imposition of sentence under this statute.
If your Honor reads the statute differently, I must, of course, defer to your reading.
THE COURT: I can see no purpose in that section for this particular case."
The trial judge sentenced the defendant to a term of 3 1/3 years to 20 years imprisonment. The 20-year maximum is double the standard 10-year maximum sentence for attempted robbery, a Class 3 felony (Ill. Rev. Stat. 1977, ch. 38, pars. 8-4(c)(3), 1005-8-1(b)(4)). This appeal followed.
The defendant does not claim that the trial court erred in invoking the extended term provision of the Unified Code of Corrections when sentencing him for his attempted robbery conviction. Rather, the defendant contends that he should not have been sentenced under the extended term provision until he had first been committed to the ...