Appeal from the Appellate Court for the Third District; heard
in that court on appeal from the Circuit Court of Peoria County,
the Hon. Donald Courson, Judge, presiding.
JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:
The problem in this appeal, which also has been raised in a number of other cases in the appellate court, is whether, in the State's terms, the defendant was properly convicted of felony theft rather than misdemeanor theft, or, in the defendant's terms, whether she should have been sentenced for a Class A misdemeanor rather than a Class 3 felony.
Loretta Jackson was indicted for theft under section 16-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 16-1) for shoplifting clothing valued at $251.98. On August 25, 1981, the date of the alleged offense, section 16-1(e) provided:
(1) Theft of property, other than a firearm, not from the person and not exceeding $150 in value is a Class A misdemeanor. * * *
(3) Theft of property from the person or exceeding $150 is a Class 3 felony." (Ill. Rev. Stat. 1979, ch. 38, par. 16-1(e).)
Effective January 1, 1982, sections 16-1(e)(1) and 16-1(e)(3) were amended, increasing the $150 amounts to $300. (Ill. Rev. Stat. 1981, ch. 38, par. 16-1(e)). No other changes were made in section 16-1.
Prior to her bench trial in the circuit court of Peoria County, the defendant moved on January 7, 1982, to have the allegation that she stole property worth more than $150 stricken from the indictment, and for admonition as to sentencing alternatives under the statute as amended. The motion was denied, and defendant was convicted of theft and sentenced to 30 months' probation conditioned on serving 26 weekends in jail, a sentence permissible only for a felony conviction. Defendant appealed on the alternative grounds that her guilt was not proved beyond a reasonable doubt and that the sentencing procedure was improper given the amendment to section 16-1 set forth above. The appellate court affirmed (112 Ill. App.3d 908, 912), and we granted leave to appeal (87 Ill.2d R. 315(a)). The reasonable doubt question has not been raised in this court.
Defendant argues that section 4 of "An Act to revise the law in relation to the construction of the statutes" (Ill. Rev. Stat. 1981, ch. 1, par. 1103) requires that she be given the option of sentencing according to the new provision, under which she claims to be guilty only of a Class A misdemeanor rather than a Class 3 felony.
"No new law shall be construed to repeal a former law * * * as to any offense committed against the former law, or as to any act done, any * * * punishment incurred * * * or in any way whatever to affect any such offense or act so committed or done * * * or punishment so incurred * * * before the new law takes effect, save only that the proceedings thereafter shall conform, so far as practicable, to the laws in force at the time of such proceeding. If any penalty, forfeiture or punishment be mitigated by any provisions of a new law, such provision may, by the consent of the party affected, by [sic] applied to any judgment pronounced after the new law takes effect. This section shall extend to all repeals * * * whether the repeal is in the act making any new provision upon the same subject or in any other act." (Emphasis added.) Ill. Rev. Stat. 1981, ch. 1, par. 1103.
Defendant contends that the change in section 16-1 applied only to sentencing, i.e., mitigation of punishment. The State argues that the change affects a substantive provision. According to the State, the value of the property taken is an element of the crime, and thus the effect of retroactive application would be to repeal the prior law, a result expressly forbidden by section 4. The State views "felony theft" and "misdemeanor theft" as separate offenses defined by the value of the property stolen, but we are not persuaded by that construction of the statute.
We believe the appellate court erred in holding that value is an essential element of the offense of theft (112 Ill. App.3d 908, 912). Section 16-1 defines only one offense of theft. Variations of the factual circumstances under which control over property of the owner is obtained are enumerated in sections 16-1(a) through (d). Value of property taken is mentioned only in subsection (e), titled "sentence," which applies to all of the variations. Value determines only whether the theft will be punished as a felony or as a misdemeanor. Value has nothing to do with the decision whether a theft has occurred.
The State relies on the broad language of People v. Harden (1969), 42 Ill.2d 301, 306, for the proposition that value is a material element of the offense of theft. However, the issue in Harden was whether the jury must specifically find the value of the property taken. Harden held that such a finding was required, in order that the defendant could be properly sentenced. So far as Harden states that value is an element of the ...