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"A person convicted of theft from a coin-operated machine shall be guilty of a Class Amisdemeanor. A person who has been convicted of theft from a coin-operated machine and whohas been previously convicted of any type of theft, robbery, armed robbery, burglary, residentialburglary, possession of burglary tools or home invasion is guilty of a Class 4 felony. When aperson has any such prior conviction, the information or indictment charging that person shall statesuch prior conviction so as to give notice of the State's intention to treat the charge as a felony. Thefact of such prior conviction is not an element of the offense and may not be disclosed to the juryduring trial unless otherwise permitted by issues properly raised during such trial."

The indictment charging defendant with theft from a coin-operatedmachine stated that the offense was a Class 4 felony, based ondefendant's previous conviction of possession of a stolen motorvehicle. Defendant argues that possession of a stolen motor vehicle isnot one of the enhancing offenses listed in section 16--5(c). Theenhancing offenses are "any type of theft, robbery, armed robbery,burglary, residential burglary, possession of burglary tools or homeinvasion." 720 ILCS 5/16--5(c) (West 1996). The parties agree that theonly possible one that would apply is "any type of theft." Defendantargues that possession of a stolen motor vehicle is not a type oftheft, while the State argues that it is.

We find instructive the supreme court's analysis in People v. McCarty,94 Ill. 2d 28 (1983). In McCarty, the court considered whether robberywas "any type of theft" for purposes of the recidivist provision ofthe theft statute (Ill. Rev. Stat. 1977, ch. 38, par. 16--1(e)(1) (nowcodified, as amended, at 720 ILCS 5/16--1(b)(2) (West 1996))). Afternoting that "theft" is a term of art defined by statute, the courtrelied on three factors in concluding that robbery was not a type oftheft. First, theft requires an intent to permanently deprive theowner of the property, while robbery requires no such showing ofintent. McCarty, 94 Ill. 2d at 33. Second, the court noted that alltheft offenses are codified in article 16 of the Criminal Code of 1961(Criminal Code) and robbery is codified in article 18. McCarty, 94Ill. 2d at 33-34. Finally, the court noted that construing robbery asa type of theft would violate the principle that ambiguities in penalstatutes, particularly enhancement provisions, must be resolved in thedefendant's favor. McCarty, 94 Ill. 2d at 34-35.

Applying the McCarty analysis to this case leads to the same result.Possession of a stolen motor vehicle is codified at section4--103(a)(1) of the Illinois Vehicle Code (Vehicle Code) (625 ILCS5/4--103(a)(1) (West 1996)) rather than in article 16 of the CriminalCode. The trial court noted that possession of a stolen motor vehiclewas included in article I of chapter 4 of the Vehicle Code, which isentitled "ANTI-THEFT LAWS." However, just because the purpose of theprovisions in article I is to discourage theft does not mean that anyone of them actually describes the crime of theft. For instance,several of the sections involve title and registration offenses. See625 ILCS 5/4--104 through 4--105.1 (West 1996). Making possession of astolen motor vehicle a Class 2 felony can discourage theft without thepossession itself actually being a theft.

Further, the possession of a stolen motor vehicle statute makes it acrime for a person "not entitled to the possession of a vehicle oressential part of a vehicle to receive, possess, conceal, sell,dispose, or transfer it, knowing it to have been stolen or converted."625 ILCS 5/4--103(a)(1) (West 1996). This is similar to the type oftheft described in section 16--1(a)(4) of the Criminal Code (720 ILCS5/16--1(a)(4) (West 1996)), which occurs when a person "[o]btainscontrol over stolen property knowing the property to have been stolenor under such circumstances as would reasonably induce him to believethat the property was stolen." However, this also requires an intentto permanently deprive the owner of the property. See 720 ILCS5/16--1(a)(4)(A) through (C) (West 1996). This element is not requiredfor possession of a stolen motor vehicle. One could argue thatpossession of a stolen motor vehicle is a lesser included offense oftheft. Nevertheless, the supreme court rejected this contention inPeople v. Bryant, 128 Ill. 2d 448, 457 (1989), and held thatpossession of a stolen motor vehicle is a separate and more seriousoffense than theft rather than a lesser included offense of theft.

At best, section 16--5(c) is ambiguous in whether it includespossession of a stolen motor vehicle as a type of theft. As statedpreviously, ambiguities in penal statutes, particularly enhancementprovisions, must be resolved in the defendant's favor. McCarty, 94Ill. 2d at 34-35.

It is difficult to tell what the State is arguing in its brief.However, to the extent the State suggests the enhancement could beconsidered proper based on defendant's other previous convictions oftheft, burglary, and theft from a coin-operated machine, we rejectthis contention because defendant was not given notice. The statuteunambiguously requires the State to give defendant notice in theindictment of any offenses it plans to use in enhancing the sentence.It is not for us to speculate why the State did not use any ofdefendant's convictions that were specifically listed as enhancingoffenses in the statute but rather chose a conviction that was notlisted in the statute. The State did not list these other convictionsin the indictment, and thus they are irrelevant for our purposes.

Defendant's conviction of possession of a stolen motor vehicle is aClass A misdemeanor rather than a Class 4 felony. Accordingly, wereverse defendant's sentence and remand the matter to the trial courtso that it can resentence defendant for a Class A misdemeanor. Thejudgment of the circuit court of Kane County is otherwise affirmed.

Affirmed in part and reversed in part; cause remanded.

BOWMAN, P.J., and INGLIS, J., concur.