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Following a stipulated bench trial, defendant, Eliseo F.Gamino a/k/a Philip Gamino, was convicted of burglary (720 ILCS5/19--1(a)(West 2001)) and sentenced to a term of probation of 46months and 96 days of time served in the county jail. Defendantwas also ordered to pay a $500 fine and court costs. Defendantappeals and contends that his conviction must be reversed becauseevidence showed that he committed residential burglary (720 ILCS5/19--3(a)(West 2001)) and, therefore, he could not properly beconvicted of burglary. We reverse his conviction.

The facts relative to our decision are not in dispute. OnJanuary 30, 2001, defendant was charged by information withresidential burglary. The information was superceded by anindictment on February 8, 2001, which alleged that on January 29,2001, defendant knowingly and without authority entered theresidence of Bernie Lareau with the intent to commit a thefttherein.

On April 25, 2001, defendant waived his right to a trial byjury. At that time, the State indicated that it would proceed onthe charge of burglary under the information, as amended, and notresidential 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 tothe court by way of the transcript from the grand juryproceedings. The parties did not, however, stipulate to thesufficiency of that evidence to convict.

The grand jury testimony established that on January 29,2001, defendant entered the home of Bernie Lareau withoutLareau's permission. Defendant was discovered while still in thehouse. Subsequently, defendant admitted to police that heentered the house by forcing open an upstairs window. Defendantalso admitted that he broke into the house with the intent tosteal marijuana. The trial court found defendant guilty ofburglary and imposed sentence. Defendant filed no post-trialmotions. A timely appeal was filed.

Defendant contends that the evidence was insufficient toprove him guilty of burglary because the same evidence, in fact,proved him guilty of the mutually exclusive offense ofresidential burglary. We must reluctantly agree.

According to our supreme court, the offenses of residentialburglary and burglary are mutually exclusive, i.e., residentialburglary can be committed only in a dwelling place, whereasburglary cannot. People v. Childress, 158 Ill.2d 275, 302(1994). Thus, if defendant committed the offense of residentialburglary, he could not have committed the offense of burglary. People v. Borgen, 282 Ill. App. 3d 116, 120 (1996). The Borgencourt, when faced with the same "unorthodox" argument with whichwe are faced in the instant matter, was forced to conclude thatif the defendant entered the dwelling place of another "then hecommitted the offense of residential burglary and, according toChildress, 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 ofburglary and residential burglary are distinct, logic wouldsuggest that the former is necessarily a lesser included offenseof 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 uncontrovertedthat defendant entered the dwelling place of another in violationof the residential burglary statute. Defendant was caught in thevictim's house and admitted breaking into the house to stealmarijuana. Accordingly, we reverse defendant's conviction forburglary.

The State maintains that defendant should not prevail, asthe issue was waived when defendant filed no post-trial motion. Ordinarily, under such circumstances, the issue would be deemedwaived. People v. Enoch, 122 Ill. 2d 176 (1988). However, whenan error would allow for conviction for an offense the defendantdid not commit, fundamental fairness dictates that the appeal beheard. People v. Maskell, 304 Ill. App. 3d 77, 82 (1999).

The State also maintains that defendant entered into a pleaagreement to secure a lighter sentence and should not now beallowed 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 mustfail. Unlike Myrieckes and Bassin, the defendant herein did notenter into a negotiated guilty plea. Rather, he proceeded on astipulated bench trial where he did not concede the sufficiencyof the evidence against him.

The State asks that this court remand this matter so thatdefendant can prosecuted for residential burglary. We cannot dothat. The defendant asks this court to declare that any attemptto prosecute him for residential burglary would violate doublejeopardy and compulsory joinder principles. We cannot do thateither. It is well settled that this court cannot give advisoryopinions. Barth v. Reagan, 139 Ill. 2d 399 (1990). Thisdisposition reverses defendant's conviction on the charge ofburglary. Should he be charged in the future with the offense ofresidential burglary for his actions on January 29, 2001, theeffect of the instant disposition upon that future event would beripe for resolution as a defense to the charge. We make nocomment on that issue at this time.

For the foregoing reasons, the judgment of the circuit courtof Iroquois County is reversed.

Reversed.

LYTTON, P.J., and SLATER, J., concur.