APPEAL from the Circuit Court of Edgar County; the Hon. RALPH
S. PEARMAN, Judge, presiding.
JUSTICE LONDRIGAN DELIVERED THE OPINION OF THE COURT:
In January and February 1981 the State charged the three defendants here, Dorothy Edwards, Greg Lange, and Dawn Lange, and a fourth person, Brandon Edwards, with firing a shotgun at a man June 15, 1977, and with other offenses related to the shooting. The State pleaded several exceptions to the statute of limitations; the trial court ruled that Brandon Edwards was amenable to prosecution but dismissed the charges against the others as barred by the three-year statute of limitations for felonies. All three defendants here were charged with attempted murder, conspiracy to commit murder, aiding a fugitive, and conspiracy to obstruct justice. In addition to these offenses Greg Lange and Dawn Lange were charged with solicitation to commit murder. The State appeals the dismissal of the charges in causes Nos. 17021, 17022, and 17023.
The State first argues that the statute of limitations does not bar prosecuting the defendants for attempted murder because that offense was neither a felony nor a misdemeanor in 1977 and, alternatively, that attempted murder should be treated like murder, which may be prosecuted at any time.
Section 3-5 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 3-5) provides general rules regarding limitations and said:
"(a) A prosecution for murder, manslaughter, treason, arson, or forgery may be commenced at any time.
(b) Unless the statute describing the offense provides otherwise, or the period of limitation is extended by Section 3-6, a prosecution for any offense not designated in Subsection (a) must be commenced within three years after the commission of the offense if it is a felony, or within one year and six months after its commission if it is a misdemeanor."
The State argues that in 1977 attempted murder was an anomaly, neither a felony nor a misdemeanor, and therefore not governed by section 3-5(b). Section 8-4(c)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 8-4(c)(1)) said that "the sentence for attempt to commit murder shall not exceed the sentence for a Class 1 felony"; at that time the maximum term of imprisonment for a Class 1 felony was "any term in excess of four years" and the minimum was four years (Ill. Rev. Stat. 1977, ch. 38, pars. 1005-8-1(b)(2), (c)(2)). But the language used in section 8-4(c)(1) — "shall not exceed" — meant that attempted murder had no minimum sentence. (People v. Moore (1978), 69 Ill.2d 520, 522-23, 372 N.E.2d 666, 668.) Public Act 80-1099, effective February 1, 1978, changed section 8-4(c)(1) to say that "the sentence for attempt to commit murder shall not exceed the sentence for a Class X felony" (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 8-4(c)(1)), and Public Act 81-923, effective January 1, 1980, substituted "is" for "shall not exceed" in section 8-4(c)(1) (Ill. Rev. Stat. 1979, ch. 38, par. 8-4(c)(1)), making explicit the classification of attempted murder. The phrase "shall not exceed" is the cause of the confusion here. The case must be decided under the statute in effect when the offense allegedly occurred. The election in section 8-2-4(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1008-2-4(b)) applies only to changes made by Public Act 80-1099. See People v. Peoples (1979), 71 Ill. App.3d 842, 390 N.E.2d 554.
The State points to the definitions of "felony" and "misdemeanor" to show that without a minimum sentence attempted murder was unclassified. A felony is "an offense for which a sentence to death or to a term of imprisonment in a penitentiary for one year or more is provided," and a misdemeanor is "any offense for which a sentence to a term of imprisonment in other than a penitentiary for less than one year may be imposed." (Ill. Rev. Stat. 1977, ch. 38, pars. 2-7, 2-11.) The State concludes from Moore and the definitions of "felony" and "misdemeanor" that in 1977 the classification of attempted murder depended on the sentence imposed in the particular case; classification of an offense, the State believes, must be apparent at the outset of the prosecution to determine whether the statute of limitations is a bar; when the classification of an offense is not immediately ascertainable, the time periods specified in section 3-5(b) cannot be used.
• 1 This argument fails for several reasons. Moore should not be read as saying that attempted murder was neither a felony nor a misdemeanor; that case held only that no minimum sentence was prescribed for the offense. Indeed, attempted murder fit the statutory definition of "felony," for section 8-4(c)(1) provided a term of imprisonment "for one year or more" — a person convicted of attempted murder could be sentenced to the same sentence as one convicted of a Class 1 felony, namely "any term in excess of four years." Because attempted murder had no minimum term, the result of the State's argument is that sentencing a person convicted of that offense to one day in jail would transform the crime into a misdemeanor. An offense is a felony when more than a year in prison "is provided" as the sentence; we read this phrase as referring to the maximum prison term provided by the statute rather than the minimum possible sentence, if any, or the sentence actually imposed. Therefore, at the time in question attempted murder was classifiable as a felony.
In People v. Musial (1980), 90 Ill. App.3d 930, 414 N.E.2d 61, and People v. Calvert (1980), 82 Ill. App.3d 350, 402 N.E.2d 638, the defendants argued that attempted murder was a Class 4 felony under the rules regarding unclassified offenses. Section 5-5-2(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, par. 1005-5-2(a)) provided:
"The particular classification of each felony is specified in the law defining the felony. Any unclassified offense which is declared by law to be a felony or which provides a sentence to a term of ...