Opinion
No. 70-152 Reversed and remanded for resentencing only.
October 5, 1971.
APPEAL from the Circuit Court of Henry County; the Hon. RICHARD STENGEL, Judge, presiding.
Theodore A. Gottfried, of Defender Project, of Ottawa, for appellant.
William K. O'Connor, State's Attorney, of Cambridge, for the People.
The cause before us involves a simple but unusual issue.
Defendant Charles E. Talbot was charged in one count of an indictment with the crime of armed robbery and in the other count with theft of less than $150. One count, therefore, involved theft from the person in the armed robbery charge, and the other, simply theft of a sum less than $150. On July 18, 1970, as a result of plea bargaining and conferences, defendant waived a jury trial and pleaded guilty to the count of the indictment which charged the theft of $12. Pursuant to the agreement as between the parties, the first count charging armed robbery was dismissed. The defendant was thereafter sentenced to a term of not less than 1 nor more than 2 years in the penitentiary in accordance with the agreement of the parties.
On appeal in this Court, defendant contends that the sentence imposed upon him is improper and not authorized by statute (Ill. Rev. Stat. ch. 38, par. 16-1). The statute in question specifically provides that a person first convicted of a theft of property not from the person and not exceeding $150 in value shall be fined not to exceed $500 or imprisoned in a penal institution other than a penitentiary not to exceed 1 year or both. It further provides that a person convicted of such theft a second or subsequent time or after a prior conviction of any type of theft shall be imprisoned in the penitentiary from 1 to 5 years.
It is pointed out on behalf of the State that the defendant in this cause was previously convicted of the crime of burglary and served a term in the penitentiary as a result thereof. It is contended by the State that since he was so convicted of burglary, this involves any "type of theft" referred to in the statute. We cannot determine from the record if there was any theft involved in the burglary conviction since the only reference to burglary shown on appeal in this Court is simply the fact of sentencing for such crime. If in fact the burglary involved theft and defendant was previously convicted of said crime of burglary involving a type of theft, then a sentence of 1 to 2 years could stand.
• 1 A second consideration which is urged by the State is that in the dismissed count the charge was made of the theft of this sum from a person. When the question arose as to the matter of sentencing, the State offered to amend the remaining count to state that the theft was from the person of a certain individual. This would amount to a theft from the person. The attorney for the defendant was asked if he had any objections and he stated he felt it was sufficient as is. The State contends that it would be incongruous if defendant were allowed to reap the benefits and rewards of a negotiated plea and ultimately escape the consequences thereof. We agree that a defendant, wherever possible, should not be permitted to take advantage of technical positions to defeat the objectives of a negotiated plea. We find no precedent, however, which would authorize us to invoke the doctrine of estoppel in a criminal case with respect to sentences resulting from negotiated pleas where an appeal is founded on an assertion that a sentence is in excess of the penalty fixed by statute for the charge to which a guilty plea was made.
• 2 In view of the fact that the record does not indicate the nature of theft, if any, involved in the burglary charge for which defendant previously served a term and in view of the state of the record as it exists at the present time, this Court cannot determine the issues raised on the appeal and it is, therefore, reversing this cause and remanding the same to the circuit court of Henry County for resentencing.
So far as the record before us is concerned, the only appropriate sentence under the section of the statute involved would be for a period of 1 year. Unless a clear record of a prior conviction for a "type of theft" is shown, sentence should be imposed only for a period of 1 year. This cause will, therefore, be reversed and remanded to the circuit court of Henry County for resentencing.
Reversed and remanded for resentencing only.
STOUDER and SCOTT, JJ., concur.