No. 3--01--0381

	_________________________________________________________________

	IN THE APPELLATE COURT OF ILLINOIS

	THIRD DISTRICT

	A.D., 2002

THE PEOPLE OF THE STATE 		)	Appeal from the Circuit Court

OF ILLINOIS,				)	for the 21st Judicial Circuit,

 						)	Iroquois County, Illinois

	Plaintiff-Appellee,		)

						)	No. 01--CF--9

	v.					)

						)

ELISEO F. GAMINO,			)	Honorable 	

						)	Gordon L. Lustfeldt,

	Defendant-Appellant.	)	Judge Presiding

_________________________________________________________________

	ORDER	JUSTICE HOLDRIDGE delivered the Opinion of the court:

_________________________________________________________________

	Following a stipulated bench trial, defendant, Eliseo F.

Gamino a/k/a Philip Gamino, was convicted of burglary (720 ILCS

5/19--1(a)(West 2001)) and sentenced to a term of probation of 46

months and 96 days of time served in the county jail.  Defendant

was also ordered to pay a $500 fine and court costs.  Defendant

appeals and contends that his conviction must be reversed because

evidence showed that he committed residential burglary (720 ILCS

5/19--3(a)(West 2001)) and, therefore, he could not properly be

convicted of burglary.  We reverse his conviction.  

	The facts relative to our decision are not in dispute.  On

January 30, 2001, defendant was charged by information with

residential burglary.  The information was superceded by an

indictment on February 8, 2001, which alleged that on January 29,

2001, defendant knowingly and without authority entered the residence of Bernie Lareau with the intent to commit a theft

therein.

	On April 25, 2001, defendant waived his right to a trial by

jury.  At that time, the State indicated that it would proceed on

the charge of burglary under the information, as amended, and not

residential burglary, as originally charged.  On April 30, 2001,

the matter proceeded to a stipulated bench trial.  Specifically,

the parties stipulated that the evidence would be presented to

the court by way of the transcript from the grand jury

proceedings.  The parties did not, however, stipulate to the

sufficiency of that evidence to convict.   

	The grand jury testimony established that on January 29,

2001, defendant entered the home of Bernie Lareau without

Lareau's permission.  Defendant was discovered while still in the

house.  Subsequently, defendant admitted to police that he

entered the house by forcing open an upstairs window.  Defendant

also admitted that he broke into the house with the intent to

steal marijuana.  The trial court found defendant guilty of

burglary and imposed sentence.  Defendant filed no post-trial

motions.  A timely appeal was filed.

	Defendant contends that the evidence was insufficient to

prove him guilty of burglary, because the same evidence, in fact,

proved him guilty of the mutually exclusive offense of

residential burglary.  We must,\ reluctantly agree.    

	According to our supreme court, the offenses of residential

burglary and burglary are mutually exclusive, i.e., residential burglary can be committed only in a dwelling place, whereas

burglary cannot.  People v. Childress, 158 Ill.2d 275, 302 (1994).  Thus, if defendant committed the offense of residential

burglary, he could not have committed the offense of burglary. 

People v. Borgen, 282 Ill. App. 3d 116, 120 (1996).  The Borgen court, when faced with the same "unorthodox" argument with which

we are faced in the instant matter, was forced to conclude that

if the defendant entered the dwelling place of another "then he

committed the offense of residential burglary and, according to

Childress, could not have committed the offense of burglary."  Borgen, 282 Ill. App. 3d at 116.  Justice Geiger noted, however, in his special concurrence that "[a]lthough the offenses of

burglary and residential burglary are distinct, logic would

suggest that the former is necessarily a lesser included offense

of the latter."  Borgen, 282 Ill. App. 3d at 125 (J. Geiger, specially concurring).  We agree with Justice Geiger.   

	Here, the evidence before the trial court was un-controverted

that defendant entered the dwelling place of another in violation

of the residential burglary statute.  Defendant was caught in the

victim's house and admitted breaking into the house to steal

marijuana.  Accordingly, we reverse defendant's conviction for

burglary. 

	The State maintains that defendant should not prevail, as

the issue was waived when defendant filed no post-trial motion. 

Ordinarily, under such circumstances, the issue would be deemed

waived.  People v. Enoch, 122 Ill. 2d 176 (1988).  However, when an error would allow for conviction for an offense the defendant

did not commit, fundamental fairness dictates that the appeal be

heard.  People v. Maskell, 304 Ill. App. 3d 77, 82 (1999).

	The State also maintains that defendant entered into a plea

agreement to secure a lighter sentence and should not now be

allowed to challenge the benefit of his bargain.  See, People v. Myrieckes, 315 Ill. App. 3d 478 (2000); People ex rel. Bassin v. Isreal, 31 Ill. App. 3d 744 (1975).  The State's argument must fail.  Unlike Myrieckes and Bassin, the defendant herein did not enter into a negotiated guilty plea.  Rather, he proceeded on a

stipulated bench trial where hie did not concede the sufficiency

of the evidence against him.  

	The State asks that this court remand this matter so that

defendant can prosecuted for residential burglary.  We cannot do

that.  The defendant asks this court to declare that any attempt

to prosecute him for residential burglary would violate double

jeopardy and compulsory joinder principles.  We cannot do that

either.  It is well settled that this court cannot give advisory

opinions.  Barth v. Reagan, 139 Ill. 2d 399 (1990).  This disposition reverses defendant's conviction on the charge of

burglary.  Should he be charged in the future with the offense of

residential burglary for his actions on January 29, 2001, the

effect of the instant disposition upon that future event would be

ripe for resolution as a defense to the charge.  We make no

comment on that issue at this time.  

	For the foregoing reasons, the judgment of the circuit court

of Iroquuois County is reversed.

ioiuis 	Reversed.  

If a conviction is vacated upon appeal, does double jeopardy

attach.	   owing this court's remand for resentencing, the defendant, Claude Span, was resentenced to a 20-year term of

imprisonment for armed violence.  This sentence was ordered to

run consecutively to Span's sentences for other crimes.  On

appeal, Span argues that the trial court failed to make the

requisite finding that consecutive sentences were required to

protect the public.  He also argues that the court erroneously

believed that consecutive sentences had to be imposed.  We vacate

the sentence and remand.

	Following a jury trial in 1997, Span was found guilty of

armed violence and sentenced to 25 years in prison.  He was also

found guilty of violating the terms of his probation for prior

convictions of unlawful use of a credit card and burglary.  For

those offenses, Span received concurrent sentences of three and

five years.  Because the trial court determined that the nature

of the offenses and Span's character warranted that consecutive sentences be imposed to protect the public, it ordered that the

sentence for armed violence be served consecutively to the other

two sentences.  

	In a subsequent appeal, this court held that Span had been

sentenced under an unconstitutional version of the armed violence

sentencing statute.  We remanded the matter to the trial court

for resentencing.  People v. Span, No. 3--00--0837 (2001) (unpublished order under Supreme Court Rule 23).  On remand, an

updated presentence investigation report (PSI report) was filed

and a new sentencing hearing was held.  At the hearing, Span

addressed the court and apologized to the victim and his family. 

Span advised the court that while incarcerated he had completed a

child parenting program, obtained his associate's degree and

participated in various religious programs.  At the conclusion of

the hearing, the trial court sentenced Span to a term of 20 years

for armed violence and ordered the sentence to run consecutively

to the other sentences.  The court noted that Span had shown some

remorse and rehabilitation and that it had considered the

evidence received at the jury trial, the new PSI report and

Span's statements at the hearing.  Though he did not file a

motion to reconsider with the trial court, Span appealed.

	Span argues that after the first sentence was vacated, the

trial court was required to make a new finding that the public's

protection required consecutive sentences.  He also argues that

the court erroneously believed that the new sentence had to run consecutively to the previously imposed sentences.  The State responds that Span waived this issue because he failed to file a

posttrial motion challenging the consecutive nature of the new

sentence.  The State also argues that the court's remarks at the

second hearing failed to show that it had abandoned its earlier

finding.  This court reviews the trial court's decision for abuse

of discretion.  People v. Golden, 323 Ill. App. 3d 892, 753 N.E.2d 475 (2001).

	Section 5--8--4(b) of the Unified Code of Corrections (Code)

states as follows:

		"The court shall not impose a consecutive sentence

*** unless, having regard to the nature and

circumstances of the offense and the history and

character of the defendant, it is of the opinion that

such a term is required to protect the public from

further criminal conduct by the defendant, the basis

for which the court shall set forth in the record." 

730 ILCS 5/5--8--4(b) (West 2000).

Though the court is not required to recite the specific language

of section 5--8--4(b) when imposing consecutive sentences, the record must show that consecutive sentences were motivated by the

court's belief that the public's protection required them. 

People v. Dorosz, 217 Ill. App. 3d 1016, 578 N.E.2d 67 (1991).

	Based on our review of the record, we hold that the trial

court failed to articulate a sufficient rationale for the

imposition of consecutive sentences.  We acknowledge that the court stated that it had considered the trial record, the updated PSI report, and the new evidence relating to Span's remorse and

rehabilitation.  However, a general statement that this evidence

was considered is inadequate to show that consecutive sentences

were motivated by a belief that the public's protection required

them.  Nor does it show that the nature and circumstances of Span's offenses or his history and character were considered. 

See People v. Jones, 232 Ill. App. 3d 1083, 598 N.E.2d 380 (1992) (stating that the imposition of consecutive sentences does not

automatically warrant a conclusion that the court believed they

were necessary to protect the public).

	The State argues that the trial court's comments during the

second sentencing hearing did not indicate that it had abandoned

its earlier finding that consecutive sentences were necessary. 

We do not agree.  In our view, the record of the hearing fails to set forth a clear basis for the court's belief that consecutive sentences were warranted.  While the State asserts that Span waived this issue because he did not request a specific finding

in the trial court or challenge the imposition of the consecutive

sentences, we refuse to apply the waiver rule in this case.  See

Dorosz, 217 Ill. App. 3d at 1023, 578 N.E.2d at 71 (rejecting an argument that defendant waived his right to contest his

consecutive sentences because a sufficient rationale for the

sentences was not articulated or reflected in the record). 

Accordingly, we vacate the defendant's sentence and remand this case to the circuit court of Rock Island County for resentencing.

	Vacated in part and remanded.

	HOLDRIDGE, J., with 	HOLDRIDGE, J., WITH wuithith LYTTON, P.J., AND and SLATER, J., CONconcur.ring.