People v. Olivo

People v. Olivo, No. 83592 (9/24/98)
Docket No. 83592--Agenda 12--May 1998.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
STANLEY E. OLIVO, Appellant.

JUSTICE HEIPLE delivered the opinion of the court:
The issue in this case is whether the circuit court may
impose a Class X extended-term sentence upon a defendant who
has never been convicted of a Class X felony. Defendant,
Stanley 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). Though unlawful
possession of a stolen vehicle is a Class 2 felony, the circuit
court of Grundy County found defendant eligible for a Class X
sentence based on defendant's prior Class 2 felony convictions.
See 730 ILCS 5/5--5--3(c)(8) (West 1994). The circuit court
further found defendant eligible for a Class X extended-term
sentence pursuant to 5--5--3.2(b)(1) of the Unified Code of
Corrections. 730 ILCS 5/5--5--3.2(b)(1) (West 1994). Defendant
appealed, contending that he was not eligible for the Class X
extended-term sentence because he had never been convicted of
a Class X felony. The appellate court affirmed the sentence. 288
Ill. App. 3d 414. We reverse.
Section 5--5--3.2(b)(1) provides:
"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:
(1) When a defendant is convicted of any felony, after
having been previously convicted in Illinois or any other
jurisdiction of the same or similar class felony or greater
class felony, when such conviction has occurred within 10
years after the previous conviction, excluding time spent in
custody, and such charges are separately brought and tried
and arise out of different series of acts." (Emphasis added.)
730 ILCS 5/5--5--3.2(b)(1) (West 1994).
Thus, a defendant is eligible for an extended-term sentence
when he is convicted of any felony where that defendant has
previously been convicted of the same or greater class felony.
Initially, we note that although defendant's sentence was
enhanced to a Class X term, his convictions remain Class 2
felonies. See People v. Thomas, 171 Ill. 2d 207, 224 (1996)
(enhanced sentencing under section 5--5--3(c)(8) does not
elevate the class of a crime). Simply put, defendant has never
been convicted of a Class X felony. A straightforward reading
of the plain language of section 5--5--3.2(b)(1) dictates that
defendant is ineligible for a Class X extended-term sentence
because he has not previously been convicted "of the same or
similar class felony or greater class felony" as Class X. 730
ILCS 5/5--5--3.2(b)(1) (West 1994).
The State counters that because defendant was properly
found eligible for a Class X sentence pursuant to section 5--5--
3(c)(8), a Class X extended-term sentence is the only logical
extended term to apply. This position, however, is inapposite to
the plain language of section 5--5--3.2(b)(1), which
unambiguously requires that a defendant have been convicted of
a Class X felony. Nor is our discussion in People v. Granados,
172 Ill. 2d 358 (1996), of any avail to the State. Granados holds
that the phrase "any felony" in the extended-term sentencing
provision includes misdemeanor convictions that had been
enhanced to felony convictions. The instant case, however,
involves the enhancement of a sentence rather than a conviction.
Defendant remains a Class 2 felony offender. Granados thus has
no bearing on the application of section 5--5--3.2(b)(1) in the
instant case.
Accordingly, while defendant is eligible for a standard Class
X sentence, section 5--5--3.2(b)(1) does not authorize a Class X
extended-term sentence. The judgment of the appellate court is
reversed, the sentence entered by the circuit court is vacated,
and the cause is remanded to the circuit court for resentencing.

Appellate court judgment reversed;
circuit court judgment vacated;
cause remanded.