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People v. Gum

OPINION FILED JUNE 20, 1980.

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

v.

JIMMY DEAN GUM, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Menard County; the Hon. LYLE E. LIPE, Judge, presiding. MR. JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:

Defendant was tried to a jury which found him guilty of one charge of arson, four charges of burglary, two charges of criminal damage to property over $150 and one charge of theft over $150. The circuit court of Menard County entered judgment on all eight verdicts. After a sentencing hearing the court imposed five concurrent extended terms of imprisonment of 12 years each on the one count of arson and the four counts of burglary. No sentences were imposed on the criminal damage and theft convictions.

On appeal defendant has not contested any of the factual matters leading to the convictions and sentences but contends (1) that the trial court erred in entering judgment on both the arson and one criminal damage verdicts since they arose out of the same act; (2) that the trial court erred in imposing extended terms where both factors set forth in section 5-5-3.2(b) of the Unified Code of Corrections (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005-5-3.2(b)) were not present; and (3) alternatively, that section 5-5-3.2(b) is unconstitutional as a deprivation of equal protection.

In its brief the State has partially conceded defendant's first issue, but also asks us to remand for the imposition of a sentence on the criminal damage and theft convictions.

A brief recitation of the facts is necessary in order to understand how the parties arrive at their conclusions. Defendant and an accomplice went to the Petersburg Elementary School where they broke a window and entered the building. They went to the principal's office, where defendant broke the door lock with a hammer and screwdriver. After going through a desk and finding no money, which was their apparent objective, they next went to the school's kitchen, where defendant forced open a door to a storage room. Money was again the objective but none was found. They then set two fires in the school, and there was evidence that these fires caused approximately $88,000 in damage.

Later, the two went to the Menard Bowl where defendant used a hammer to break a window and a door. They entered, broke into a safe and removed $200 in currency, $75 in coinage and some checks.

Next they proceeded to the Lucky Lady Laundromat where they kicked in a door, entered and took $1.25 and some coins from a soft drink machine.

Lastly they went to Juergens' Laundromat. There they broke a window and entered but were unable to find any money.

In tabular form, all this criminal activity yielded this:

Count I Arson School building Count II Criminal Damage over $150 School building Count III Burglary School building Count IV Burglary Menard Bowl Count V Theft Over $150 Menard Bowl Count VI Criminal Damage over $150 Menard Bowl Count VII Burglary Lucky Lady Laundromat Count VIII Burglary Juergens' Laundromat

As indicated above, the jury returned guilty verdicts on all eight counts, and the trial court entered judgment on all verdicts. However, sentences were imposed only on the arson and burglary counts.

Defendant's first contention is that the trial court erred in entering judgment on both counts I and II since they arose from the same act. The State concedes this, but argues that this court may reduce the degree of the offense; that is, the damage to the school by reason of the fire might have merged into the arson but there still remain the separate acts of breaking the window, the principal's door and the storage door. There being no proof of value as to the latter acts, the State argues that criminal damage under $150, a Class A misdemeanor, is appropriate. Ill. Rev. Stat. 1977, ch. 38, par. 21-1.

• 1 We agree. The breaking and damage are not lesser included offenses of arson or burglary, and therefore a separate conviction can stand. (People v. King (1977), 66 Ill.2d 551, 363 N.E.2d 838.) Our authority to reduce a sentence is contained in Supreme Court Rule 615(b) (73 Ill.2d R. 615(b)). Accordingly, defendant's conviction on count II, criminal damage to property, is reduced to a Class A misdemeanor.

• 2 Defendant's second and third contentions are disposed of by prior opinions of this court. In People v. Warfel (1979), 67 Ill. App.3d 620, 385 N.E.2d 175, we held that either, or both, of the factors set forth in section 5-5-3.2 of the Unified Code of Corrections would support an extended term. Accord, People v. Butler (1979), 78 Ill. App.3d 809, 396 N.E.2d 1374.

Recently in People v. Hamilton (1980), 81 Ill. App.3d 297, 401 N.E.2d 318, we held section ...


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