Original petition for mandamus.
MR. JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:
This original proceeding for the issuance of a writ of mandamus is brought by the State's Attorney for Cook County (petitioner) to compel Judge Vincent Bentivenga of the circuit court of Cook County (respondent) to expunge an order entered by him in a criminal proceeding. The order granted William Siedlecki (defendant) probation upon being found guilty of burglary by respondent in a bench trial.
The portions of the statutes with which we are concerned read as follows:
"A period of probation, a term of periodic imprisonment or conditional discharge shall not be imposed for the following offenses. The court shall sentence the offender to not less than the minimum term of imprisonment set forth in this Code for the following offenses, and may order a fine or restitution or both in conjunction with such term of imprisonment:
A Class 2 or greater felony if the offender had been convicted of a Class 2 or greater felony within ten years of the date on which he committed the offense for which he is being sentenced." (Ill. Rev. Stat. 1979, ch. 38, par. 1005-5-3(c)(2)(F).)
"Sentence of imprisonment for felony.
(a) A sentence of imprisonment for a felony shall be a determinate sentence set by the court under this Section, according to the following limitations:
(5) for a Class 2 felony, the sentence shall be not less than 3 years and not more than 7 years." Ill. Rev. Stat. 1979, ch. 38, par. 1005-8-1(a)(5).
The issue to be resolved is whether the respondent had a statutory duty to sentence the defendant in accordance with the cited statute. Petitioner argues that because defendant, at the time of sentencing, had a previous conviction for burglary (a Class 2 felony) within 10 years he was not eligible for probation and that the order was therefore void. Defendant argues (1) that the court should stay the mandamus proceeding to permit defendant to file a section 72 petition (Ill. Rev. Stat. 1979, ch. 110, par. 72) in the trial court; (2) that the sentencing statute is unconstitutional as applied to the facts of his case; and (3) that this court should, under Supreme Court Rule 615 (73 Ill.2d R. 615), reduce defendant's sentence from burglary to criminal trespass to land.
After a bench trial before respondent, the defendant was found guilty of burglary, a Class 2 felony. The evidence showed that he unlawfully entered an auto parts store and took one can of oil having a retail value of $1.55. A sentencing hearing was held in which the State informed respondent that the defendant had previously been convicted of burglary on October 9, 1975. Respondent sentenced defendant to two years' felony probation, the first five months of which were to be served in the Cook County jail. The State objected that the sentence was improper due to the fact that the defendant had been previously convicted of another Class 2 felony within 10 years of the commission of the instant offense. The State pointed out that the defendant was, therefore, not qualified to receive probation.
The defendant first urges this court to stay the proceeding for original mandamus to allow the defendant to file a section 72 petition in the trial court. The purpose of a section 72 proceeding is to allow the correction of errors which occurred during trial which were unknown to both the court and the parties and which would have changed the disposition of the case if known. (People v. Berland (1978), 74 Ill.2d 286, 314, cert. denied (1979), 444 U.S. 833, 62 L.Ed.2d 42, 100 S.Ct. 64.) Although the defendant does not expressly state the basis of the claimed error, we assume it relates to defendant's claim that at the time of sentencing respondent was unaware of the sentencing statute here relied on by the petitioner. After sentencing, the following colloquy occurred:
"MR. DAVY [Assistant State's Attorney]: Judge, I would ask that the case be recalled. I believe that was an ...