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THIRD DISTRICT
April 7, 2004

MODIFIED UPON DENIAL OF REHEARING

JUSTICE KARNEZIS delivered the opinion of the court:

Following a bench trial, defendant was convicted of burglary and sentenced toseven years in prison. On appeal, defendant contends his conviction must be reversedbecause when he committed the offense, burglary was not a lesser included offense ofresidential burglary.⁽¹⁾ We reverse.

The facts in this case are not in dispute. Defendant was charged with residentialburglary, and was tried in a bench trial simultaneously with codefendant Marcus Gross,who was tried before a jury.⁽²⁾ The record establishes that on March 19, 2000, at about11:45 a.m., Officer Ken Walker and his partner Linda Gutierrez were on duty in thearea of 1808 West Hastings in Chicago. Officer Walker knew Josephine Jacksonoccupied the basement apartment of the three-flat building located at 1808 WestHastings. The first and second floors of the building were vacant and some of thebuilding's windows were broken and boarded-up. Most of the homes surrounding thebuilding were in the process of being demolished.

In the alley behind the three-flat building the officers noticed a parked car withan opened trunk containing a large piece of furniture. The officers set up surveillanceand observed defendant and codefendant exit through the front door of the building. Codefendant exited carrying a large duffle bag, and defendant followed thereaftercarrying a large cardboard box. Defendant and codefendant placed the items insidethe car parked in the alley and drove away. The officers stopped the defendants andarrested them.

The officers recovered several household items from the duffle bag and a smalldesk with a mirror from the cardboard box. The officers contacted Jackson, whoidentified the recovered items as her property. Jackson stated that when she left in themorning, she locked the building. Jackson did not give defendant or codefendantpermission to enter her home or take any items.

At the close of the evidence, the trial court stated it was not convinced beyond areasonable doubt that defendant knew the basement of the building was a residenceand, therefore, found defendant "guilty of the lesser included offense of burglary." Thetrial court sentenced defendant to seven years in prison in February 2001.

Defendant filed a motion for a new trial and a motion to reconsider his sentence. The trial court denied both motions.

On appeal, defendant contends the trial court erred in convicting him of burglarybecause he was charged with residential burglary and at the time he committed theoffense burglary was not a lesser included offense of residential burglary. Specifically,defendant observes that, after he committed the offense in 2000, the statutes definingburglary and residential burglary were amended to provide that burglary is a lesserincluded offense of residential burglary.

Defendant failed to raise this issue below and therefore, ordinarily the issuewould be waived. People v. Enoch, 122 Ill. 2d 176, 186-88 (1988). However, we willaddress this issue under plain error because the error is so fundamental that it couldallow for defendant's conviction of an offense that he could not be convicted of as amatter of law. See People v. Kraus, 318 Ill. App. 3d 774, 787-88 (2000) (a defendantcannot be convicted of an offense he has not been charged with committing, but can beconvicted of an offense not included in the charging instrument if that offense is alesser included offense of the crime the defendant was expressly charged with); 134 Ill.2d R. 615(a) (errors affecting substantial rights may be reviewed although they werenot brought to the trial court's attention).

At the time defendant committed the offense in March 2000, and when he wassentenced in February 2001, the statute defining burglary provided that a personcommits burglary when without authority he knowingly enters or without authorityremains within a building, with intent to commit therein a felony or theft. 720 ILCS 5/19-1 (West 2000). The statute further provided that burglary shall not include the offenseof residential burglary. 720 ILCS 5/19-1 (West 2000). The statute defining residentialburglary at the time defendant committed the offense and was convicted provided that aperson commits residential burglary when he knowingly and without authority enters thedwelling place of another with the intent to commit a felony or theft therein. 720 ILCS5/19-3 (West 2000).

The Illinois Supreme Court held that the burglary and residential burglarystatutes defined mutually exclusive offenses. People v. Childress, 158 Ill. 2d 275, 302(1994). Therefore, burglary was not a lesser included offense of residential burglary. The holding in Childress prompted the legislature to amend the burglary and residentialburglary statutes. See People v. Taylor, No. 4-02-0180, slip op. at 3 (December 31,2003). The amendments became effective on June 1, 2001, and changed thelanguage of the statutes so that burglary now constitutes a lesser included offense ofresidential burglary. See Taylor, slip op. at 3-4.

The State urges us to follow this court's recent decision in People v. Blanks, No.1-01-0161 (1st. Dist., March 15, 2004). In Blanks, the defendant was charged withaggravated battery and residential burglary. He was found guilty of aggravated batteryand burglary. On appeal, the defendant argued that, since he had been charged withresidential burglary, he could not be found guilty of burglary because the crimes weremutually exclusive pursuant to People v. Childress, 158 Ill. 2d 275 (1994). SeeChildress, 158 Ill.2d at 302. The defendant made the same argument at trial and thecourt held that the amendment to the residential burglary statute, making burglary alesser-included offense of residential burglary, was a procedural change which couldbe applied retroactively. The two questions presented in Blanks were whether theamendment to the residential burglary statute was procedural or substantive andwhether the amendment should be applied retroactively or prospectively.

The amendment to the residential burglary statute became effective on June 1,2001, after defendant's trial and sentence in this case. "A general rule of statutoryconstruction is that an amendment will be construed as prospective, absent expresslanguage to the contrary." People v. Fiorini, 143 Ill. 2d 318, 333 (1991). Theamendment to the residential burglary statute is silent as to retroactivity and we,therefore, must construe the statute as applying prospectively. However, there is anexception to the general rule of prospectivity that arises where the amendment affectsonly procedure. People v. Digirolamo, 179 Ill. 2d 24, 50, 668 N.E.2d 116, 128 (1997). "Where the legislature intends a retroactive application of the amendment and thestatutory amendment relates to changes in procedure or remedies, and not substantiverights, it applies retroactively to pending cases." Digirolamo, 179 Ill. 2d at 50, 668N.E.2d at 128, citing Fiorini, 143 Ill.2d at 333, 574 N.E.2d 612.

Does the amendment to the residential burglary statute involve substantive lawor procedure? "Substantive law established rights and duties that may be redressedthrough the rule of procedure. [Citations.] Procedure involves matters relating topleading, practice, and evidence." Fiorini, 143 Ill. 2d at 333. In Blanks, the court heldthat the amendment was a procedural change and that it can be applied retroactively. We respectfully disagree.

Where a statute permits a conviction for an uncharged offense, we suggest itapplies to the "right or duties" of an individual, exposing him to conviction for anadditional or alternative or lesser-included offense which was not possible prior to theamendment. See Childress, 158 Ill. 2d at 302. The Blanks court suggests that "no newcrime" was created by the amendment. We agree. However, defendant is exposed toconviction of an additional crime which was not the case prior to the amendment andsubsequent to the supreme court's decision in Childress. The amendment to theresidential burglary statute is a substantive change to the law and may not be appliedretroactively.

Here, the trial court erred when it convicted defendant of burglary as a lesserincluded offense of residential burglary because the law in effect at the time of theoffense in March 2000 and defendant's conviction in February 2001, clearly held thatburglary and residential burglary were mutually exclusive offenses. Accordingly, as thecourt did in People v. Gamino, 335 Ill. App. 3d 1020 (2002), we reluctantly reversedefendant's conviction.

For all the foregoing reasons, the trial court's judgment is reversed.

Reversed.

HOFFMAN, P.J., and HALL, J., concur.

1. This court previously granted defendant's motion to dismiss the appeal becausedefendant had filed a premature notice of appeal before the trial court ruled on hispost-sentencing motion. People v. Atkins, No. 1-02-1065 (August 22, 2003)(dispositional order).

2. Codefendant was found guilty of residential burglary.