dissenting:
I dissent.
The substantive effect of the holding of the majority in this case is that nothing can be done in a post-conviction proceeding about an enhanced penalty that was imposed because of a prior conviction even though the prior conviction has been reversed. The majority holds that unless the prior conviction was void because of constitutional infirmity, the fact of reversal is not cognizable in a post-conviction proceeding.
Thus, under the majority opinion, if a defendant is convicted of an offense and appeals and is subsequently convicted of another and unrelated offense and given a more severe penalty because of the prior conviction, the severe penalty cannot be changed or reached in a post-conviction proceeding, even though the first conviction should be reversed because of failure of proof of guilt beyond a reasonable doubt. In this case, the reversal of the prior conviction was a pro forma reversal because the State did not file a brief. It should be noted, however, that in one of the cases we stated that if it would be manifestly unjust to reverse pro forma, this court could in its discretion consider the appeal upon its merits. People v. Logan, 17 Ill. App. 3d 1025, 1026, 309 N.E.2d 251.
In People v. Barney, 89 Ill. App. 2d 180, 232 N.E.2d 481, a direct appeal, but otherwise factually similar to this case, the court obviously reached the merits of the issue and stated:
“The aggravated penalties are applicable to persons who are convicted of previous offenses. It would be patently unfair to apply this provision to anything other than a proper conviction. This court has already ruled that defendant’s prior conviction was improper.” 89 Ill. App. 2d 180, 184, 232 N.E.2d 481, 483.
In People v. Russo, 52 Ill. 2d 425, 288 N.E.2d 412, cert. denied, 410 U.S. 940, 35 L. Ed. 2d 606, 93 S. Ct. 1403, the Illinois Supreme Court, through Mr. Justice Schaefer, in considering the denial of post-conviction relief, reversed a sentence imposed for attempted escape when it considered that such offense was not independently motivated from the principal offense. Two members of the court dissented and urged that the issue reached was not cognizable in post-conviction proceedings. I see no difference in reversing an erroneously imposed concurrent sentence and in aggravated penalties based upon reversed convictions. I would vacate the sentence as enhanced and remand this case to the circuit court for imposition of a new sentence.