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People v. Rankin

July 31, 1998

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ROBERT L. RANKIN, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: Justice Steigmann delivered the opinion of the court:

IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

Appeal from Circuit Court of Livingston County No. 95CF212

Honorable Charles E. Glennon, Judge Presiding.

In September 1996, following a bench trial, the trial court found defendant, Robert L. Rankin, guilty of driving while his driver's license was revoked (625 ILCS 5/6-303 (West Supp. 1995)), improper lane usage (625 ILCS 5/11-709 (West 1994)), unlawful use of a weapon (720 ILCS 5/24-1(a)(4) (West 1994)), and unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 1994)). The court entered judgments of conviction on both traffic offenses and on unlawful possession of a weapon by a felon, but did not enter a judgment of conviction on unlawful use of a weapon. In November 1996, the court sentenced defendant to an extended-term sentence of six years in prison for unlawful possession of a weapon by a felon.

Defendant did not directly appeal but instead filed a post-conviction petition in February 1997 under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 1996)). Defendant alleged in that petition that his sentence was unconstitutional and void because the trial court violated various provisions of Illinois sentencing law. In April 1997, the court conducted a hearing on the petition and denied it.

Defendant appeals, arguing that the trial court erred by sentencing him to an extended term because (1) it used a prior felony conviction as both (a) an element of an offense and (b) a justification to impose an extended term; (2) a court may sentence a defendant to an extended term only on the most serious class of offenses of which the defendant is convicted; and (3) a juvenile adjudication of delinquency under the Juvenile Court Act does not constitute a felony conviction and cannot be used to justify an extended term under section 5-5-3.2(b)(1) of the Unified Code of Corrections (Code) (730 ILCS 5/5-5-3.2(b)(1) (West Supp. 1995)). Because we agree with each of defendant's arguments, we reverse and remand with directions.

I. BACKGROUND

The trial court conducted a sentencing hearing in November 1996. The presentence investigation report indicated that defendant had previous convictions of aggravated battery (in 1993) and several misdemeanors. He had also been adjudicated delinquent as a 16-year-old for residential burglary (720 ILCS 5/19-3(a) (West 1992)).

The trial court sentenced defendant to an extended-term sentence of six years in prison for unlawful possession of a weapon by a felon. The court also sentenced him to 364 days in jail for the offense of driving while his license was revoked, to be served concurrently with the six-year term, and fined him a total of $3,050 for his three convictions.

The trial court based the extended-term sentence on defendant's 1993 felony conviction. The court also stated that it could have imposed the extended term based on defendant's offense of unlawful use of a weapon or his juvenile adjudication.

II. ANALYSIS

A. Double Enhancement

Defendant first argues that the trial court erred by sentencing him to an extended term for the conviction of unlawful possession of a weapon by a felon because using a prior felony conviction as both (1) an element of an offense, and (2) justification to sentence a defendant to an extended term constitutes an impermissible double enhancement.

The State first responds that defendant has forfeited this issue by failing to (1) object to the imposition of an extended term, (2) file a post-sentencing motion, ...


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