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03/30/89 the People of the State of v. Hubert Leron Jennings

March 30, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

HUBERT LERON JENNINGS, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

537 N.E.2d 6, 181 Ill. App. 3d 439, 130 Ill. Dec. 185 1989.IL.450

Appeal from the Circuit Court of Macon County; the Hon. Rodney A. Scott, Judge, presiding.

APPELLATE Judges:

JUSTICE KNECHT delivered the opinion of the court. LUND and GREEN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KNECHT

On November 30, 1987, defendant Hubert Leron Jennings was charged by information with the offense of retail theft (Ill. Rev. Stat. 1985, ch. 38, par. 16A-3(a)). The indictment further alleged defendant had been previously convicted of the offense of retail theft. The State did not present evidence of defendant's prior conviction during the jury trial on April 20, 1988. Defendant requested a directed verdict for the State's omission. The circuit court of Macon County refused on the authority of the amended retail theft statute, effective January 1, 1988, which declares that proof of a prior theft conviction is not an element of the offense that can be disclosed to the jury during trial. (Ill. Rev. Stat. 1987, ch. 38, par. 16A-10(2).) Thus, the trial court held the evidence of defendant's prior theft conviction would be considered solely as a matter of aggravation at sentencing. The jury returned a verdict of guilty. After the State tendered for the first time evidence of defendant's prior retail theft conviction, the trial court sentenced defendant to three years' imprisonment.

On appeal, defendant argues the trial court erroneously applied retroactively the amended sentencing statute when the statute in effect at the time the offense was committed in 1987 had recently been construed by the supreme court to require proof of a defendant's prior theft conviction at trial as a necessary element of the offense of felony theft. (People v. Hicks (1987), 119 Ill. 2d 29, 518 N.E.2d 148.) The State argues the statute was properly applied as amended because it concerns a matter of procedure and was in effect at the time of defendant's trial. Orlicki v. McCarthy (1954), 4 Ill. 2d 342, 347, 122 N.E.2d 513, 515.

It is necessary to carefully compare the statute at issue in its original and amended form. Sections 16A -- 10(1) and (2) were in effect in 1987 when defendant committed the offense of retail theft charged in this case. Those sections provide:

"Sentence.

(1) Retail theft of property, the full retail value of which does not exceed $150, is a Class A misdemeanor.

(2) After a conviction of retail theft or theft, without regard to the full retail value thereof, a second or subsequent offense of retail theft, the full retail value of which does not exceed $150 is a Class 4 felony." (Ill. Rev. Stat. 1985, ch. 38, pars. 16A-10(1), (2).)

Effective January 1, 1988, the retail theft statute as amended provides in pertinent part:

"Sentence.

(2) A person who has been convicted of retail theft of property, the full retail value of which does not exceed $150, and who has been previously convicted of any type of theft, robbery, armed robbery, burglary, residential burglary, possession of burglary tools or home invasion is guilty of a Class 4 felony. When a person has any such prior conviction, the information or indictment charging that person shall state such prior conviction so as to give notice of the State's intention to treat the charge as a felony. The fact of such prior conviction is not an element of the offense and may not be disclosed to the ...


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