concurring in part and dissenting in part:
I concur in the affirmance of the judgment of conviction but dissent from the reversal of the sentence. The majority recognize the general intent of the legislature, in enacting the Unified Code of Corrections, to abolish all indictable misdemeanors and to establish a uniform sentencing structure. I believe that, more specifically, the legislature intended the sentencing structure to be a comprehensive one classifying all cognizable offenses and providing that the sentence that could be imposed upon conviction be governed by the classification. Thus, when the legislature enacted section 12 — 4(d) of the Criminal Code stating that aggravated battery is a Class 3 felony they clearly intended that provision to prevail although the former penal provisions for aggravated batteries defined by section 12 — 4(b) were not deleted.
The majority correctly notes the often cited rule followed in People v. Isaacs, 37 Ill.2d 205, 226 N.E.2d 38, that ambiguities in a penal statute should be construed in favor of the accused. In People v. Hardaway, 108 Ill.App.2d 325, 331, 247 N.E.2d 626, 629, this court amplified that rale when it stated:
“And although criminal statutes must be strictly construed, such construction cannot be utilized for the purpose of defeating the legislature’s apparent and clear intent. People v. Kirkrand, 397 Ill. 588, 74 N.E.2d 813, 815.”
In People v. Moore, 324 Ill.App. 109, 57 N.E.2d 511, the predecessor to this court, the then Third District Appellate Court, was called upon to construe the former provisions of the Criminal Code with reference to whether the judge or the jury should impose sentence for the offense of assault with a deadly weapon with intent to do a bodily injury. The statute defining the offense provided that conviction would subject the offender to fine or confinement in the county jail or both “in the discretion of tire court.” (Ill. Rev. Stat. 1943, ch. 38, par. 60.) Subsequent to the enactment of that penal provision, legislation was passed providing for a comprehensive system of determining whether the judge or the jury should fix punishment but it was not applicable to misdemeanor cases. Still later, this subsequent act was amended to provide that in cases tried before a jury, the jury should fix the punishment if the prescribed punishment was by way of fine, jail sentence or both (Ill. Rev. Stat. 1943, ch. 38, par. 754a). The court noted that the separate provisions for the judge to fix the punishment and for the jury to do so were inconsistent. After reciting various general rules of statutory construction, the court ruled that the latest enactment showed a clear intent to cover the whole subject of the responsibility for imposing sentence in criminal cases and that the provision for the jury to make the determination, enacted after the provision for the judge to do it, was obviously intended to control.
Article 5 of the Unified Code of Corrections shows a clear intent that every existing offense be classified for it provides in section 5 — 5—1(a): “The provisions of this Article shall govern the classfication of all offenses for sentencing purposes.” (Ill. Rev. Stat. 1973, ch. 38, par. 1005— 5 — 1(a)). The provisions of sections 5 — 5—1 and 5 — 5—2 of the article show how that purpose has been accomplished. Subsections (b), (c), and (d) of section 5 — 5—2 list the types of classification for felonies, misdemeanors and petty and business offenses. Section 5 — 5—2 is entitled “Classification of Other Offenses.” Subsections (a) and (b) of section 5 — 5—2 each recite that the particular classification of each felony or misdemeanor respectively “is specified in the law defining” the offense. These subsections together with subsection (c) then perform the stated function of the section by setting forth a system of classifying the other offenses, those not classified by the law defining the offense.
Subsection (d) of section 5 — 5—2 is cited by the majority in further support of their conclusion that the penalties set forth in section 12 — 4 (b)(6) are applicable in this case. The Unified Code of Corrections was drafted and recommended to the legislature by the Illinois Council on Diagnosis and Evaluation of Criminal Defendants. Robert Kent Scott served as director of that group and reporter for the Code. The council's commentaries revised by him appear in the Smith-Hurd Illinois Annotated Statutes. The council commentaries to section 5 — 5—2 state that the purpose of the section is to provide “for the classification where it is not designated in the definition of the offense.” This is also clear from a reading of the section. The initial words of subsection (d) of section 5 — 5—2 “Notwithstanding the classification provided for in this Section” thus clearly indicate that the limitation set forth in the subsection is applicable only to classification not specified in the statute defining the offense.
The commentaries to article 5 of the Unified Code of Corrections state, and a reading of the Code makes obvious, that the purpose of classifying offenses is to have the appropriate sentence determined solely by its classification except for the limitation not here applicable, set forth in section 5 — 5—2(d). A comprehensive system of sentencing was thus established subsequent to the enactment of the penal provisions of section 12 — 4(b).
Even though the legislature deleted the penal provisions of subsections (a) and (c) of section 12 — 4 while leaving those of subsection (b) intact and even though subsection (b) previously and reasonably carried a lesser penalty than subsection (a), I am unable to attach any significance to the foregoing that is not contrary to the clear intention of the legislature. The construction given by the majority that the penal provisions of subsection (b) are applicable is directly contrary to the intent to have a comprehensive system of sentencing based upon classification applicable to all sentences and defeats the admitted intention to abolish indictable misdemeanors. If we consider the type of aggravated battery in question to be a Class 3 felony but subject to the limitations of the penal provisions of section 12 — 4(b), then the limitations swallow and destroy the classification. If we consider section 12 — 4(b) types of aggravated battery to be unclassified by subsection (d) of that section, then the offense becomes a Class 4 felony by operation of section 5 — 5—2(b) of article 5 of the Unified Code. Had the legislature intended this result they would have stated, consistently with the theory of the Unified Code, that this type of aggravated battery is a Class 4 felony rather than choosing such a circuitous route.
I, therefore, consider the offense in question to be a Class 3 felony for which a sentence of 1 to 10 years may be imposed. I would affirm the sentence as well as the conviction.