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People v. Pettigrew

OPINION FILED APRIL 24, 1984.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

RICHARD PETTIGREW, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Champaign County; the Hon. Robert J. Steigmann, Judge, presiding.

PRESIDING JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

Armed robbery.

A life sentence under the habitual offender act.

We affirm.

FACTS

The facts here are simple and the issue is singular. After a jury trial, Richard Pettigrew was found guilty of two counts of armed robbery. Prior to the sentencing hearing, the State's Attorney filed a verified statement, stating that Pettigrew was eligible for a sentence of life imprisonment under section 33B-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 33B-1) (habitual offender act) because Pettigrew had previously been convicted twice for armed robbery — once in Wisconsin in 1970 and a second time in Illinois in 1976.

At the sentencing hearing, the trial judge found that with Pettigrew's most recent conviction he now had three convictions for a Class X felony and therefore he was a habitual criminal within the meaning of the act. The trial judge then sentenced Pettigrew to life imprisonment.

On appeal, Pettigrew raises only one issue — whether his sentence for life imprisonment must be vacated because the act violates the separation of powers provisions of the Illinois Constitution. He argues that the act is unconstitutional. The State replies that it is not.

We find first, that Pettigrew waived this issue by failing to raise it in the trial court and, second, that the act does not violate the Illinois Constitution.

WAIVER

• 1 The law is well settled in Illinois that a non-jurisdictional issue, even one of a constitutional character, which has not been properly presented in the trial court and properly preserved for review, will not be considered on appeal. (People v. Amerman (1971), 50 Ill.2d 196, 279 N.E.2d 353.) As our supreme court stated in People v. Brand (1953), 415 Ill. 329, 337, 114 N.E.2d 370, 374:

"It is fundamental that the question of the constitutionality of a statute cannot be properly raised for the first time in a court of review, but must have been presented to the trial court and ruled upon by it, and the person challenging its validity must have preserved proper exceptions to such ruling."

• 2 After reviewing the record, it is clear to us that Pettigrew failed to raise in the trial court below the issue of whether the act violated the separation of powers provisions of the Illinois Constitution. ...


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