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Docket No. 91840-Agenda 13-September 2002.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. 
AARON D. SWIFT, Appellee.

Opinion filed November 21, 2002.

JUSTICE FREEMAN delivered the opinion of the court:

In this appeal we are asked to review the constitutionality ofdefendant's 80-year extended-term sentence in light of theSupreme Court's decision in Apprendi v. New Jersey, 530 U.S.466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). The central issueis one of construction of the Illinois sentencing statutes thatestablish the penalties for first degree murder. Specifically, wemust determine, for purposes of Apprendi analysis, whether theIllinois "sentencing range" for that crime is 20 to 60 years'imprisonment, 20 years' to life imprisonment, or 20 years'imprisonment to death. We conclude that the sentencing range is20 to 60 years' imprisonment. Because defendant's sentenceexceeded this range, based on a factual finding made by the court,the sentence cannot stand. Accordingly, we vacate the sentenceand remand the cause for resentencing.

BACKGROUND

In the circuit court of Winnebago County, a jury convicteddefendant, Aaron Swift, of the first degree murder (720 ILCS5/9-1(a)(2) (West 1998)) of Karzell Anderson. Although adetailed recitation of the facts underlying the conviction is notnecessary for our disposition of the case, we note that from theevidence and testimony adduced at trial, the jury could have foundthat in February 1998, defendant stabbed the victim 21 times,causing his death, as the end result of a drug-related altercation.

The State did not seek the death penalty for defendant.However, the State did request the court to impose an extended-term sentence. The court found that the offense was exceptionallybrutal or heinous, and imposed an extended term sentence of 80years' imprisonment based on that finding. See 730 ILCS5/5-8-2(a), 5-5-3.2(b)(2) (West 1998). Defendant appealed.

The appellate court affirmed defendant's conviction, butvacated his extended-term sentence. In so doing, the court heldthat section 5-8-2 of the Unified Code of Corrections (Code) (730ILCS 5/5-8-2 (West 1998))-the statute authorizing the extended-term sentence the circuit court imposed on defendant-wasunconstitutional under Apprendi, which was decided while theappeal was pending. 322 Ill. App. 3d 127. This appeal of rightfollowed. 177 Ill. 2d R. 612(b); 134 Ill. 2d R. 317. For the reasonsthat follow, we affirm the judgment of the appellate court that thesentence imposed in this case cannot stand and remand for resentencing.

ANALYSIS

As previously noted, this case involves application of the ruleof Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120S. Ct. 2348 (2000). There, the defendant was convicted ofpossession of a firearm for an unlawful purpose, a "second-degree" offense (N.J. Stat. Ann.