dissenting:
I respectfully dissent from that portion of the majority opinion which holds that before an enhanced penalty provided by section 408 of the Controlled Substances Act may be imposed the defendant must first be convicted of the first offense before he commits the subsequent offense.
The majority oudined three factors that must be present before an enhanced penalty may be imposed under section 408. In my opinion this is engrafting upon the statute conditions and provisions that completely alter the meaning and purport of the statute adopted by the legislature. It is, in short, judicial legislation. Section 408(b) of the Controlled Substances Act (Ill. Rev. Stat. 1975, ch. 56½, par. 1408(b)) provides:
“For purposes of this Section, an offense is considered a second or subsequent offense, if, prior to his conviction of the offense, the offender has at any time been convicted under this Act or under any law of the United States or of any State relating to controlled substances.” (Emphasis supplied.)
In arriving at its decision the majority relies on decisions from five other States with no attempt to show comparative statutory application. In any event, analogy to decisions from other States would not suffice as justification for overriding the plain language of the Illinois statute.
The interpretation placed upon section 408 by the majority permits unlimited and uninhibited wheeling and dealing by pushers and dealers in narcotics without fear of enhanced punishment until after they have once been convicted. Such result is contrary to both the letter and the spirit of section 408 and contrary to the legislative intent in enacting the Controlled Substances Act as that intent is expressed in section 100 of the Act (Ill. Rev. Stat. 1975, ch. 56½, par. 1100). It is plain that the defendant in the case at hand was a dealer or pusher. He admitted at least four sales of heroin but denied being a user. He is the very type at which section 408 is directed.
I would address one further statement of the majority. They state that: “[Bjefore a consecutive sentence can be imposed on a defendant, the court must be of the opinion that such a term is required to protect the public from further criminal conduct by the defendant. (Ill. Rev. Stat. 1975, ch. 38, par. 1005—8—4(b).) The trial court did not make the required finding for imposition of consecutive sentences.”
I believe the record clearly shows that the trial judge did make the findings required by section 5 — 8—4(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1975, ch. 38, par. 1105 — 8—4(b)). In giving his reasons for the sentence he was imposing the trial judge stated that he must consider not only the defendant but the other citizens of the community. The court then stated:
“The nature of the offense you are charged with is a very serious one, in that heroin is a very dangerous drag and is severely damaging to both the mind and the body, and there can be very severe emotional difficulties as a result of the use of heroin. The delivery of heroin has wrecked [sic] havoc on many segments of our society and it is a conduct that cannot be tolerated in our society today.”
Even in the absence of the above express findings of the court, I believe that so long as the reasons supporting a consecutive sentence under section 5—8—4(b) appear of record in justification of the court’s imposing a consecutive sentence, no express finding of record need be made by the court. I find no cases to this effect which are decided with regard to section 5—8—4(b) but the findings required by that section of the statute are analogous to the findings required for imposition of an enhanced penalty pursuant to section 5—8—1(c). With regard to the findings required under the latter statute it is held that they need not be expressed by the court so long as the necessary sentence supporting elements appear in the record. See People v. Collins, 36 Ill. App. 3d 269, 275, 343 N.E.2d 550, 554, where, after reviewing several cases, the court states:
“It seems clear, from the above cases and from the fact that the courts have for the most part examined the record in reviewing charges of excessiveness in sentencing, that a statement of specific reasons is not required so long as reasons appear on record supporting the addition of more years than is mandated by the Code. (See People v. Butler (3rd Dist. 1974), 21 Ill. App. 3d 331, 335, 315 N.E.2d 144.)”
The interpretation of the Collins and Butler cases is in keeping with the approach to the requirements for admonitions to defendants in taking pleas of guilty pursuant to Supreme Court Rule 402 (Ill. Rev. Stat. 1975, ch. 110A, par. 402) adopted by our supreme court in People v. Krantz, 58 Ill. 2d 187, 317 N.E.2d 559; People v. Ellis, 59 Ill. 2d 255, 320 N.E.2d 15; and People v. Dudley, 58 Ill. 2d 57, 316 N.E.2d 773.
Without question the better approach would be for the trial court to state of record his reasons for imposing a consecutive sentence. However, in the absence of such statement by the trial court the imposition of a consecutive sentence could still be justified if the factors supporting it appeared in the record. I believe such a result is clearly directed by Collins, Butler, Krantz, Ellis and Dudley.