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07/28/89 the People of the State of v. Larry Stewart

July 28, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

LARRY STEWART, DEFENDANT-APPELLANT

THE PENALTY FOR A CLASS X OFFENSE IS IMPRISONMENT FOR NOT LESS THAN SIX YEARS AND NOT MORE THAN 30 YEARS. ILL. RE

v.

STAT. 1985, CH. 38, PAR. 1005-8-1(A)(3).



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SIXTH DIVISION

542 N.E.2d 915, 186 Ill. App. 3d 833, 134 Ill. Dec. 569 1989.IL.1174

Appeal from the Circuit Court of Cook County; the Hon. Francis J. Mahon, Judge, presiding.

APPELLATE Judges:

JUSTICE LaPORTA delivered the opinion of the court. EGAN, P.J., and QUINLAN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LAPORTA

Defendant, Larry Stewart, and codefendant, Otis McCoy, were charged by indictment with burglary. (Ill. Rev. Stat. 1985, ch. 38, par. 19-1.) Following a joint bench trial, defendant was convicted of burglary, and McCoy was found not guilty. After a hearing in aggravation and mitigation, defendant was sentenced to a term of eight years' imprisonment. On appeal, defendant contends that the trial court erred in imposing this sentence. For the reasons stated below, we affirm the judgment of the circuit court.

The evidence adduced at trial established that on April 5, 1985, defendant burglarized the home of the complainant, Lee Oliver Neal. Upon finding defendant guilty, the court revoked his bond and ordered a presentence investigation. Although defense counsel stated that he had no objection to proceeding to sentencing with only the pretrial investigation report, the trial court continued the matter until a presentence investigation report could be prepared. The presentence investigation report reflected, inter alia, that defendant had three prior convictions for burglary. For these previous offenses, defendant received a four-year sentence on February 3, 1981, a three-year sentence on October 12, 1982, and another three-year sentence on November 18, 1982. The pretrial investigation report contained defendant's three prior burglary convictions and the sentences imposed as well as a record of defendant's adult criminal history. This record reflected the dates of defendant's arrests and the dates of his previous convictions.

During the sentencing hearing, the prosecutor pointed out defendant's three prior burglary convictions and argued that defendant's background required that he be sentenced as a Class X offender. (Ill. Rev. Stat. 1985, ch. 38, par. 1005-5-3(c)(8).) Defense counsel stated that he knew nothing about defendant's prior burglary convictions and argued against application of the Class X sentencing provision because defendant had been merely "junking" (removing property from a building he believed to be abandoned) and had not committed "a classic burglary." Defense counsel acknowledged that defendant's background was "not the best in the world," but argued that defendant was "not a violent person" and should not receive a Class X sentence. Defense counsel did not, however, dispute the accuracy or validity of the information contained in the pretrial and presentence investigation reports.

Prior to imposing sentence, the trial Judge stated that because defendant's record included three prior burglaries, the court felt that defendant would continue to commit burglary. Accordingly, after consideration of his notes on the case, the arguments of counsel and the presentence investigation report, the trial Judge sentenced defendant to a term of eight years.

Burglary is a Class 2 felony (Ill. Rev. Stat. 1985, ch. 38, par. 19-1(b)), and the penalty for a Class 2 felony is imprisonment for not less than three years and not more than seven years (Ill. Rev. Stat. 1985, ch. 38, par. 1005-8-1(a)(5)). In certain circumstances, however, a court may impose a greater sentence.

Section 5--5--3(c)(8) of the Unified Code of Corrections provides as follows:

"When a defendant, over the age of 21 years, is convicted of a Class 1 or Class 2 felony, after having twice been convicted of any Class 2 or greater class felonies in Illinois, and such charges are separately brought and tried and arise out of different series of acts, such defendant shall be sentenced as a Class X offender. This paragraph shall not apply unless (1) the first felony was committed after the effective date of this amendatory Act of 1977; and (2) the second felony was committed after conviction on the first; and (3) the third felony was committed after conviction on the second." (Ill. Rev. Stat. 1985, ch. 38, par. 1005-5-3(c)(8).)

Section 5--5--3.2(b)(1) of the Unified Code of Corrections provides that an extended term may be imposed under the following circumstances:

"When a defendant is convicted of any felony, after having been previously convicted in Illinois of the same or greater class felony, within 10 years, excluding time spent in custody, and such charges are separately brought and tried and arise out of different ...


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