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11/01/89 the People of the State of v. James E. Hurd

November 1, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

JAMES E. HURD, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

546 N.E.2d 1096, 190 Ill. App. 3d 800, 138 Ill. Dec. 41 1989.IL.1721

Appeal from the Circuit Court of Williamson County; the Hon. Snyder Howell, Judge, presiding.

APPELLATE Judges:

JUSTICE GOLDENHERSH delivered the opinion of the court. WELCH, P.J., and LEWIS, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GOLDENHERSH

Defendant, James E. Hurd, was convicted of felony retail theft (Ill. Rev. Stat. 1987, ch. 38, par. 16A-3(a)) and unlawful possession of a hypodermic syringe or needle (Ill. Rev. Stat. 1987, ch. 38, par. 22-50) by the circuit court of Williamson County sitting without a jury. The value of the goods alleged taken was less than $150, which ordinarily would constitute a Class A misdemeanor offense (Ill. Rev. Stat. 1987, ch. 38, par. 16A-10(1)); however, the criminal information alleged that defendant had previously been convicted of retail theft, which enhances the alleged offense to a Class 4 felony (Ill. Rev. Stat. 1987, ch. 38, par. 16A-10(2)). Defendant's prior theft conviction was a misdemeanor. Defendant was sentenced to concurrent terms of imprisonment of five years on the felony theft conviction and 364 days on the other conviction.

A Class 4 felony is ordinarily punishable by a determinate penal sentence of not less than one year and not more than three years. (Ill. Rev. Stat. 1987, ch. 38, par. 1005-8-1(a)(7).) Under certain circumstances, an extended term of not less than three years and not more than six years may be imposed. (Ill. Rev. Stat. 1987, ch. 38, par. 1005-8-2(a)(6).) On appeal, defendant contends that since his conviction for retail theft was a misdemeanor which was enhanced to a felony only because it was a repeat offense predicated upon a prior misdemeanor retail theft conviction, the court impermissibly enhanced his sentence by imposing an extended term of five years' imprisonment. The State counters that the extended term was imposed as a result of defendant's prior armed robbery, rape, and aggravated kidnapping convictions.

The presentence report reveals that on October 17, 1977, defendant was sentenced to concurrent terms of not less than five years and not more than seven years' imprisonment on two counts of armed robbery, four counts of aggravated kidnapping, and two counts of rape. Defendant was paroled on April 16, 1979, and discharged by the Department of Corrections on June 16, 1981.

Section 5 -- 5 -- 3.2(b)(1) of the Unified Code of Corrections states:

"(b) the following factors may be considered by the court as reasons to impose an extended term sentence under Section 5 -- 8 -- 2 upon any offender who was at least 17 years old on the date the crime was committed:

(1) 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 series of acts . . .." (Ill. Rev. Stat. 1987, ch. 38, par. 1005-5-3.2(b)(1).)

The offenses in the case at bar were alleged to have been committed on September 13, 1987. At the time defendant committed his prior felonies, aggravated kidnapping, rape, and armed robbery were Class 1 felonies. Ill. Rev. Stat. 1975, ch. 38, pars. 10-2(b), 11-1(c), 18-2(b).

Defendant relies on People v. Hobbs (1981), 86 Ill. 2d 242, 427 N.E.2d 558. Hobbs involved a defendant who was convicted of theft with a prior theft conviction, a Class 4 felony. (Ill. Rev. Stat. 1979, ch. 38, par. 16-1(e).) The trial court used a prior October 1978 felony theft conviction to enhance defendant's instant offense from a misdemeanor to a felony and also used that same prior felony conviction to impose an extended-term sentence. Ill. Rev. Stat. 1979, ch. 38, par. 1005-5-3.2(b)(1).

In holding that an extended-term sentence was not possible where the sentencing offense was a misdemeanor enhanced to a felony by the same prior conviction which allowed the ...


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