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Docket No. 98257-Agenda 4-May 2005.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
WILLIAM ATKINS, Appellee.

Opinion filed October 20, 2005.

CHIEF JUSTICE THOMAS delivered the opinion of the court:

At issue is whether an amendment to the residential burglarystatute, making burglary a lesser-included offense of residentialburglary, may be applied retroactively. We hold that it may not.

BACKGROUND

The State charged defendant, William Atkins, and hiscodefendant, Marcus Gross, with residential burglary (720 ILCS5/19-3 (West 2000)). Defendant's bench trial was held simultaneouslywith Gross' jury trial. The evidence showed that, on March 19, 2000,Chicago police officers arrested defendant and Gross after observingthem removing items from a three-flat building at 1808 West Hastings.Many buildings in the area had been torn down, and the three-flat wasthe only building remaining on its side of the block. The first andsecond floors of the building were vacant, but the officers were awarethat Josephine Jackson lived in the basement apartment with herchildren. Jackson had locked the door to her apartment when she leftfor work that morning, and the door showed signs of forced entry.The apartment had been ransacked, and Jackson later identified ashers the property recovered from defendant and Gross. Jacksontestified that she did not know defendant or Gross and did not givethem permission to enter her apartment.

The jury found Gross guilty of residential burglary. In defendant'scase, however, the trial judge stated that he did not think that it hadbeen proved beyond a reasonable doubt that defendant knew theapartment was a residence. Accordingly, the trial judge convicteddefendant only of the "lesser included offense" of burglary.

Defendant appealed, contending that, at the time of the offense,case law established that burglary was not a lesser-included offense ofresidential burglary. Thus, once the court found that residentialburglary had not been proved, he was entitled to an acquittal. TheState responded that, subsequent to defendant's conviction, thelegislature amended the residential burglary statute to make burglarya lesser-included offense. See 720 ILCS 5/19-3 (West 2002).According to the State, this amendment could be applied retroactivelyto defendant's case.

The appellate court, First District, disagreed. 348 Ill. App. 3d126. The court first noted held defendant had waived the issue byraising it for the first time on appeal. Nevertheless, the court chose toaddress the issue under the plain error rule because the error raisedwas so fundamental that it could allow defendant to be convicted ofan offense that he could not be convicted of as a matter of law. 348Ill. App. 3d at 128. The court then noted the rule that statutoryamendments that are procedural may be applied retroactively, whilethose that apply to substantive law may not. 348 Ill. App. 3d at 129.The court held that the amendment making burglary a lesser-includedoffense of residential burglary was substantive because it exposeddefendant to conviction of an additional crime. Thus, the courtreluctantly reversed defendant's burglary conviction. 348 Ill. App. 3dat 130. We allowed the State's petition for leave to appeal.

ANALYSIS

The question before us is solely one of law. Accordingly, ourreview proceeds de novo. People v. Breedlove, 213 Ill. 2d 509, 512(2004).

At the time of the offense, the burglary and residential burglarystatutes provided, in relevant part, as follows:

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