dissenting:
I must respectfully dissent from the majority opinion. I believe that under section 5 — 5—3.2(b)(1) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.2(b)(1)), defendant Robinson was improperly sentenced to a 12-year extended-term sentence. This section reads:
“(b) 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 who was at least 17 years old on the date the crime was committed:
(1) When a defendant is convicted of any felony, after having been previously convicted in Illinois of the same or greater class felony, within 10 years, excluding time spent in custody, and such charges are separately brought and tried and arise out of different series of acts; * ”
I agree with the majority that the statute must be strictly construed. I also agree with the majority that the phrase “after having been previously convicted in Illinois of the same or greater class felony” limits the subsequent phrase “excluding time spent in custody.” I differ from the majority, however, in the construction to be accorded the phrases.
I believe the phrase “after having been previously convicted in Illinois of the same or greater class felony” qualifies “excluding time spent in custody” in two ways. First, the time spent in custody must be for a felony of the same or greater class as the felony with which the defendant is presently charged. In other words, time spent in custody for a misdemeanor at a lesser felony would not fall within the statute and therefore would not toll the statute.
Second, the defendant also must have been “convicted in Illinois” for the time spent in custody to be excluded. In contrast to the majority opinion, I believe the words “convicted in Illinois” refer to jurisdiction, not geography. Had the legislature intended time spent in custody for a Federal conviction to be excluded in calculating the 10-year period, it could have explicitly so stated. That the legislature did not so intend is evident. As stated above, for time spent in custody to be excluded, it must be for a felony the same or greater as the felony with which the defendant is presently charged. However, the legislature has presented no method by which it can be determined whether a Federal felony conviction is the same or greater as the State charge. Had the legislature intended to permit convictions in other jurisdictions to toll the statute, it would have provided such a method. Therefore, I believe the words “convicted in Illinois” refer to jurisdiction, i.e., convictions under State law, and do not contemplate convictions under Federal statutes, even if they occur in Illinois.
For these reasons I dissent from that portion of the majority opinion affirming defendant Robinson’s sentence.