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05/20/97 PEOPLE STATE ILLINOIS v. STANLEY E. OLIVO

May 20, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
STANLEY E. OLIVO, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the 13th Judicial Circuit, Grundy County, Illinois. No. 95--CF--82. Honorable Paul E. Root, Judge, Presiding.

Rehearing Denied June 26, 1997. Released for Publication June 26, 1997.

Present - Honorable William E. Holdridge, Justice, Honorable Thomas J. Homer, Justice, Honorable John F. Michela, Justice. Justice Michela Delivered The Opinion OF The Court. Holdridge, J., concurs; Homer, J. dissents.

The opinion of the court was delivered by: Michela

JUSTICE MICHELA DELIVERED THE OPINION OF THE COURT:

The defendant, Stanley E. Olivo, pled guilty to unlawful possession of a stolen vehicle and reckless homicide. 625 ILCS 5/4--103(a)(1) (West 1994); 720 ILCS 5/9--3(a) (West 1994). He was subsequently sentenced to a 40-year term of imprisonment for unlawful possession of a stolen vehicle and a concurrent five-year term of imprisonment for reckless homicide. On appeal, he argues that the trial court erred in imposing a Class X extended term of imprisonment for unlawful possession of a stolen vehicle. We affirm.

The pre-sentence investigation report indicated that the defendant had five prior Class 2 felony convictions which all arose out of different acts. At the sentencing hearing, the court used two of the defendant's prior offenses to enhance his sentence for possession of a stolen vehicle, a Class 2 felony, to a Class X sentence. See 730 ILCS 5/5--5--3(c)(8) (West 1994). The trial court then found the defendant eligible for an extended sentence based on his third Class 2 felony. See 730 ILCS 5/5--5--3.2(b)(1) (West 1994). The court then imposed an extended Class X sentence of 40 years of imprisonment. See 730 ILCS 5/5--8--2(a)(2) (West 1994).

On appeal, the defendant argues that the trial court erred in imposing an extended Class X sentence for unlawful possession of a stolen vehicle. He contends that although his sentence was properly enhanced to Class X status, he was not eligible for a Class X extended term because he had never been previously convicted of a Class X felony.

When a defendant is convicted of a Class 2 felony after having two prior convictions of any Class 2 or greater felonies in Illinois, and such charges arise out of different series of acts, the defendant shall be sentenced as a Class X offender. See 730 ILCS 5/5--5--3(c)(8) (West 1994). When a defendant's sentence is increased under these circumstances, the classification of the charged offense remains the same. People v. Thomas, 171 Ill. 2d 207, 664 N.E.2d 76 (1996). Further, a defendant may receive an extended term sentence when he is convicted of any felony after having been previously convicted in Illinois of the same or greater class felony within 10 years, and the felonies arise out of different acts. See 730 ILCS 5/5--5--3.2(b)(1) (West 1994).

We find that the trial court properly imposed an extended Class X sentence. A defendant is eligible for an extended sentence if he has a prior conviction of the same or greater class as his current conviction, not his current sentence. See 730 ILCS 5/5--5--3.2(b)(1) (West 1994). Here, the defendant's current conviction was a Class 2 felony and his prior offenses were all Class 2 felonies. Therefore, he was eligible for an extended sentence. Additionally, as the defendant concedes, he was to be sentenced as a Class X offender. The only logical extension of a Class X sentence is a Class X extended term. Accordingly, we find that the trial court did not err in imposing a Class X extended sentence.

The judgment of the circuit court of Grundy County is affirmed.

Affirmed.

HOLDRIDGE, J., concurs; HOMER, J. dissents.

The Honorable Justice HOMER, dissenting:

Because the defendant has never been convicted of a Class X felony, I believe that the trial court lacked statutory authority to ...


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