APPEAL from the Circuit Court of Will County; the Hon. ANGELO
F. PISTILLI, Judge, presiding.
MR. PRESIDING JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
The defendants, Mack Bell and Burnell Robinson, were jointly indicted in the Circuit Court of the Twelfth Judicial Circuit, Will County, for one count each of robbery and one count each of aggravated battery. On May 16, 1979, a jury found the defendants guilty on all counts. Defendant Robinson was sentenced on August 8, 1979, to an extended term of 12 years of imprisonment for robbery and a 5-year term of imprisonment for aggravated battery, the sentences to run concurrently. Defendant Bell was sentenced to concurrent terms of imprisonment of three years for robbery and two years for aggravated battery. The trial court, pursuant to section 110-7(g) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 110-7(g)), also ordered both defendants to reimburse their public defender from their remaining bail deposits. The defendants' causes were consolidated on appeal.
Both defendants urge that the reimbursement order be vacated because section 110-7(g) was declared unconstitutional in People v. Cook (1980), 81 Ill.2d 176, 407 N.E.2d 56. The State agrees with their contention. Accordingly, the trial court's order that the public defender be reimbursed from the defendant's bail deposits is vacated.
Defendant Robinson also appeals his 12-year extended-term sentence for the April 15, 1978, robbery, contending that the trial court improperly applied the extended-term provision (Ill. Rev. Stat. 1979, ch. 38, par. 1005-5-3.2(b)(1)) when sentencing him because the trial court based the application of the extended-term provision on a Federal conviction in Illinois. The State counters, arguing that the trial court considered a Federal conviction, which resulted in the defendant's custody from 1967 to December 1974, merely to toll the expiration of the 10-year extended-term limit; thus, the court properly extended his sentence based on two 1967 Illinois convictions for robbery.
The provision in dispute, section 5-5-3.2(b)(1) of the Unified Code of Corrections, reads:
"(b) The following factors may be considered by the court as reasons to impose an extended term sentence under Section 5-8-2 upon any offender who was at least 17 years old on the date the crime was committed:
(1) When a defendant is convicted of any felony, after having been previously convicted in Illinois of the same or greater class felony, within 10 years, excluding time spent in custody, and such charges are separately brought and tried and arise out of different series of acts; or
* * *." (Ill. Rev. Stat. 1979, ch. 38, par. 1005-5-3.2(b)(1).)
At the sentencing hearing, the State introduced certified copies of four of the defendant's prior convictions. Those convictions were as follows:
(1) January 17, 1958 — armed robbery, Will County, paroled April 17, 1959;
(2) February 8, 1967 — robbery, Kane County, paroled April 11, 1969;
(3) April 20, 1967 — robbery, United States District Court for the Northern District of Illinois, paroled in December, 1974;
(4) June 12, 1967 — robbery, Will County, paroled April 11, 1969.
The State introduced the 1958 conviction solely for the purpose of aggravating the sentence and not to trigger the ...