delivered the opinion of the court:
Dеfendant was sentenced to 12 months’ periodic imprisonment on pleas of guilty to charges of aggravated battery and unlаwful restraint. Subsequently, the periodic imprisonment was revoked and defendant was resentenced to concurrent extended terms of 10 years and six years on the respective charges. Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 7—2.
Defendant on appeal asks this court to either vacate the extended-term sentence or, in the alternative, to reverse the judgments entered upon the underlying pleas of guilty, arguing that (1) application of the extended-term sentence under section 5 — 5—3.2(b)(1) of the Unified Code of Cоrrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5— 3.2(b)(1)) is unconstitutional since it violates the equal protection clause and the due proсess clause of the United States Constitution (U.S. Const., amend. XIV) in that it irrationally applies only where a prior offense was cоmmitted in Illinois; and (2) imposition of an extended term upon defendant under the circumstances at bar was impermissible becausе (a) his original plea was entered without prior notice that an extended-term sentence was a possibility, as required by section 5 — 8—2(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—2(b)), and (b) his original plea was not knowingly and voluntarily entered, in violation of Supreme Court Rule 402. 73 Ill. 2d R. 402.
The relevant facts are as follows. In August 1978 defendant was charged by two indictments; No. 78 — 4837, charging him with the crime of unlawful restraint (Ill. Rev. Stat. 1977, ch. 38, par. 10 — 3(a)), and No. 78 — 4838, charging him with the crime of aggravated battery. (Ill. Rev. Stat. 1977, ch. 38, par. 12 — 4.) On October 11, 1979, upon defendant’s pleas of guilty to each of these charges, he was sentenced to a term of 12 months’ periodic imprisonment with certain conditions prohibiting his use of alcoholic beverages, and requiring his participation in an alcoholic treatment program.
Thereafter, in December 1979 the State filed a “Petition for Violation of Periodic Imprisonment,” allеging that defendant failed to report as required on November 18, 1979, and that as of December 6, 1979, he had failed to return to the Dеpartment of Corrections work release program. The petition also alleged that defendant had further
After a hearing on the State’s petition held on October 31, 1980, the trial court found that defendant had violated the conditions of his periodic imprisonment sentence. The court was then informed by the prosecutor that in July 1979 defendant was convicted of aggravated kidnaping and aggravated battery, which crimes, the court. noted, were of the “same classifiсation or greater than this case.” The court thereafter revoked the periodic imprisonment and imposed an extended-term sentence of 10 years’ imprisonment on the aggravated battery charge, with a concurrent six-year sentenсe for the unlawful restraint charge. Both sentences were imposed under the “extended term” statute.
Opinion
Defendant contends thаt the extended term of imprisonment must be vacated because his original guilty pleas were entered without notice to him of the possibility of imposition of such a sentence, under section 5 — 8—2 of the Unified Code of Corrections. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—2.) This sеction provides in pertinent part:
“(b) If the conviction was by plea, it shall appear on the record that the plеa was entered with the defendant’s knowledge that a sentence under this Section was a possibility. If it does not so appear on the record, the defendant shall not be subject to such a sentence unless he is first given an opportunity to withdraw his plеa without prejudice.” Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—2(b).
The instant record fails to show that defendant was so advised. Accordingly, defendant wаs not subject to an extended-term sentence at the time of his initial sentencing. Furthermore, since upon revocation оf periodic imprisonment the court could impose only another sentence that was available at the time of initial sentencing, the defendant was not subject to the extended term at the subsequent revocation hearing. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 7—2(c); cf. People v. Brogan (1979),
The defendant has contended that the original pleas should also be vacated as not having been knowingly and voluntarily entered under Supreme Court Rule 402 (73 Ill. 2d R. 402). The State argues that defendant has waived this issue for purposes of review by failing to make it the subject of an appeal from the original conviction. We agree with the State’s position. An appeal from a probation revocation
Since we have held that defendant was not subject to sentencing under the “extеnded term” statute (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—2), we need not consider his claim that application of the extended term under section 5 — 5—3.2 (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3.2) is unconstitutional.
For the foregoing reasons, the convictions and the revocations of periodic imprisonment are hereby affirmed, the order imposing extended-term sentences is vacated, and the cause is remanded for re-sentencing in a manner consistent with this opinion.
Conviction and revocation affirmed; sentence vacated and remanded.
SULLIVAN, P. J., and LORENZ, J., concur.