¶1dissenting:
¶2The jury acquitted the defendant of burglary, but it found him guilty of theft over $150. The jury’s guilty verdict was returned only after it twice had requested the trial judge to define the word “property” and after it had asked the trial judge if it could find the defendant guilty of theft under $150. The trial judge told the jury that it could not find the defendant guilty of theft under $150, even though there was ample testimony, which if believed, would have supported a jury verdict of theft under $150.
¶3After the guilty verdict was returned, the trial judge decided that he had erroneously informed the jury that it could not return a verdict of guilty on the lesser included offense of theft under $150. At the sentencing hearing the trial court stated:
“The court, in imposing a six year term, treated this as a Class 4 felony, even though you were convicted of a Class 3 felony, and sentenced you to the maximum extended term for a Class 4 felony, which in the court’s opinion is the verdict that would have been handed down had they been properly instructed.”
¶4In other words, the trial court thought that, given the nature of the evidence that he had heard and the erroneous jury instruction, defendant was not proved guilty beyond a reasonable doubt of theft over $150. To this extent, I agree with the trial court. The majority correctly points out that a sentence for the Class 4 felony offense of a subsequent theft could never stand because the prior theft conviction, an element of that crime, was not charged or proved at trial.
¶5On this record, the only offense that the defendant was guilty of beyond a reasonable doubt was the misdemeanor offense of theft under $150. (Ill. Rev. Stat. 1979, ch. 38, par. 16 — 1(e)(1).) Therefore, I dissent.