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People v. Flatt

OPINION FILED SEPTEMBER 20, 1985.

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

v.

ANDREW W. FLATT, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Peoria County; the Hon. Donald C. Courson, Judge, presiding. JUSTICE WOMBACHER DELIVERED THE OPINION OF THE COURT:

Defendant Andrew Flatt was indicted for burglary and felony theft under $300. A jury only convicted him of theft. He was sentenced to 2 1/2 years in the penitentiary. He appeals, claiming that his conviction should be reduced to a misdemeanor. We affirm.

Defendant had been previously convicted of theft. This formed the basis of the felony enhancement. The parties and the court agreed that to inform the jury of defendant's prior conviction would be too prejudicial. Thus, the jury never heard of his earlier conviction. Defendant did, however, admit to the conviction at the sentencing hearing.

Defendant argues that his conviction should be reduced to a misdemeanor, as the prior conviction was not proved to the jury. Therefore, he argues, he was not proved guilty of felony theft under $300 beyond a reasonable doubt.

Our first analysis requires us to examine the theft statute. The present case alleged a violation of section 16-1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 16-1(a)). Subsections (b) through (d) further enumerate the means by which a person can commit theft.

The sentencing provision of the theft statute is contained in subsection (e). There, a theft is classified either a misdemeanor or a felony. A theft is felonious if the item taken is a firearm or exceeds $300 in value, or if the defendant has a prior conviction for theft or retail theft.

Defendant suggests that the provisions of the sentencing subsection are essential elements of the crime of theft. We find this proposition to be contrary to the clear meaning of the statute. Defendant primarily relies on the recent supreme court holding in People v. Palmer (1984), 104 Ill.2d 340, 472 N.E.2d 795. Palmer involved an unlawful use of weapons (UUW) conviction. The majority in Palmer held that in a felony enhancement of UUW, the prior conviction must be proved to the trier of fact at the trial on the merits.

Defendant, attempting to analogize Palmer, points to the similar wording that the UUW provision examined in Palmer has with the theft statute. (We note that prior to trial in this case, a new enactment of the UUW statute created section 24-1.1, UUW by a felon. This new section makes the prior conviction an essential element of the crime.) Defendant would have us, based on Palmer, ignore recent precedent that is contrary to his position.

If this were a UUW case, Palmer certainly would control. However, two recent decisions regarding the felony enhancement provisions of the theft statute are more compelling. The supreme court examined the value-enhancement proviso in People v. Jackson (1984), 99 Ill.2d 476, 459 N.E.2d 1362. Jackson held that the value of the item taken was not an essential element of the crime. (99 Ill.2d 476, 479.) The court stated that subsections (a) through (d) list the circumstances under which theft can be committed.

"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." 99 Ill.2d 476, 479.

The First District examined the similar sentencing provision found in the retail theft statute. In doing so, that court found that the prior conviction of theft or retail theft needed to enhance the crime did not have to be proved during trial. (People v. Price (1984), 127 Ill. App.3d 1, 468 N.E.2d 412.) As in Jackson, Price held that the prior conviction affects only sentencing, not whether the defendant is guilty of theft. 127 Ill. App.3d 1, 3.

We further note, as did the First District, that great prejudice would fall on the defendant if the State was required to show to the jury that the defendant sitting before them had previously been convicted of the same crime with which he is charged. This prejudice would be unnecessary as the phrasing and the clear meaning of the statute do not require the State to prove the prior conviction to the trier of fact. The prior conviction only has to be shown to the sentencing judge.

Therefore, the judgment of the circuit court of Peoria County is hereby affirmed.

Affirmed.

BARRY, J., ...


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