Appeal from the Appellate Court for the Third District; heard
in that court on appeal from the Circuit Court of Kankakee
County, the Hon. John F. Michela, Judge, presiding.
JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:
This is a consolidated appeal from a decision of the appellate court reversing the revocation of defendant Larry McCarty's probation by the circuit court of Kankakee County.
In December 1978 defendant was charged with felony theft and tampering with a motor vehicle in connection with allegations that he stole an automobile battery. The theft of the battery would ordinarily have been a Class A misdemeanor only (Ill. Rev. Stat. 1977, ch. 38, par. 16-1(e)(1)), but the information charged defendant with Class 4 felony theft based on the theft statute's recidivist provision (Ill. Rev. Stat. 1977, ch. 38, par. 16-1(e)(1)). The charge was enhanced to a felony because of defendant's conviction in Illinois in 1970 for armed robbery. Misdemeanor theft was not charged. The defendant did not challenge the enhancement of the theft charge at the time, but pleaded guilty to felony theft in exchange for dropping the charge of tampering with a motor vehicle. The circuit court of Kankakee County accepted defendant's guilty plea on January 12, 1979, fined him $300, and sentenced him to 30 months' probation. While on probation, however, he was charged with attempted retail theft of a package of cigarettes. He pleaded guilty to this charge without assistance of counsel and on October 16, 1980, was fined $50 and sentenced to three days in jail. Four days later, the State filed a petition to revoke defendant's probation on the basis of his retail theft conviction. The circuit court heard evidence on this petition and on January 26, 1981, entered an order revoking defendant's probation. A sentencing hearing was held, and on February 26, 1981, the court imposed a sentence of two years in prison.
On appeal, defendant contended that his sentence of imprisonment was void for two reasons: first, because robbery was not a "type of theft" that can be used to enhance a misdemeanor theft to a felony theft, thus rendering void the conviction for felony theft on which his probation was based, and second, because an uncounseled guilty plea could not be used to revoke a defendant's probation. The appellate court held that robbery could be used to enhance a misdemeanor theft to a felony, and noted also that even if it could not be so used, defendant waived his right to object by not appealing his felony-theft conviction when that judgment was entered in January 1979. However, it agreed with defendant that his probation could not be revoked on the basis of a guilty plea entered without the assistance of counsel absent a knowing waiver of the right to counsel, which the record, silent as to such a waiver, did not reveal. The court remanded the cause accordingly. (101 Ill. App.3d 355.) Both sides filed petitions for leave to appeal, defendant seeking to void his sentence of probation as well as the sentence of imprisonment. Both petitions were allowed.
The enhancement provision of the Illinois theft statute reads:
(1) Theft of property, other than a firearm, not from the person and not exceeding $150 in value is a Class A misdemeanor. A second or subsequent offense after a conviction of any type of theft, including retail theft, other than theft of a firearm, is a Class 4 felony." (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 38, par. 16-1(e)(1).)
To be eligible for enhancement to a felony, a misdemeanor theft must occur after the defendant has been convicted of "any type of theft." Theft, like all crimes recognized by the law of this State, is a term of art which is specifically defined by a statute (see, e.g., section 1-3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 1-3)).
Part C of title III of the Criminal Code of 1961 covers various enumerated "Offenses Directed Against Property." Article 16 under part C, which is entitled "Theft and Related Offenses," defines various types of theft along with article 16A, which defines retail theft. The enhancement provision involved in this case appears in article 16. Deception, robbery, burglary, arson, damage and trespass to property, residential picketing, and interference with a public institution of higher education, all offenses against property, are defined in sections of part C subsequent to those entitled theft (see articles 17 through 21 and articles 21.1 and 21.2). Article 16 defines theft as occurring when one "knowingly" obtains or exerts unauthorized control over property of the owner, obtains control of such property by deception or by threat, or obtains control of property which he knows to be stolen and intends to keep from its owner. Article 18 defines robbery as occurring when one "takes property from the person or presence of another by the use of force or by threatening the imminent use of force" (Ill. Rev. Stat. 1977, ch. 38, par. 18-1); armed robbery, the initial crime in this case, is the commission of robbery while "armed with a dangerous weapon" (Ill. Rev. Stat. 1977, ch. 38, par. 18-2). Theft and robbery are defined in two different articles of the "Offenses Directed Against Property" section of the Criminal Code of 1961, and they are two different crimes as defined. Theft requires knowledge that the taking is unauthorized and an intent to permanently deprive the owner of the use or benefit of the property (e.g., People v. Hargrave (1975), 29 Ill. App.3d 89; People v. Wilson (1974), 23 Ill. App.3d 457, 460), while robbery requires no similar showing of intent (People v. Banks (1979), 75 Ill.2d 383, 388-92; People v. Tyllas (1981), 96 Ill. App.3d 1, 3). The essence of the one crime is not the essence of the other: theft is an intended, unauthorized deprivation of the benefit or use of property, while robbery is the use of force in the taking of property, regardless of intent or the anticipated duration of the taking.
Further support for the view that the Criminal Code of 1961 does not include robbery as a "type of theft" emerges from the committee comments to article 16. These reveal that article 16 was meant to place under one heading the various offenses against property which were essentially so similar that their coexistence served only to confuse litigants.
"Formerly, in Illinois, there were some seventy-four separate sections which dealt in one form or another with the obtaining of property of another with the intent to permanently deprive such other or the true owner of the property or its beneficial use. All lawyers and judges are too familiar with the highly technical differences between larceny, larceny by trick, embezzlement, false pretenses, confidence game, and the many variations to require detailed comment. Suffice to say that, with the exception of robbery, burglary, arson, and criminal damage and trespass to property, which are covered respectively in Articles 18, 19, 20 and 21, the Committee intended to codify the entire range of offenses against property into Articles 16 and 17, and to abolish completely the labels and highly technical distinctions which had developed through centuries of case law and statutory amendments. * * *
Because of the special characteristics of the stolen commodity, and the practical problems of knowledge and intent involved, the theft of lost or mislaid property, and of labor, services or the use of property, are dealt with separately in sections 16-2 and 16-3. However, it should be noted that these offenses are also Theft.
All other forms of theft are included in section 16-1 except the special deceptive practices proscribed by Article 17." (Emphasis added.) (Ill. Ann. Stat., ch. 38, art. 16, ...