It is clear that the original incarnation of § 5-8-4(c) applies to Walker; his certiorari petition was denied on February 20, 1973, over a year before the amendment to § 5-8-4(c) took effect, and even if no Supreme Court action had been taken before July 1, 1974, Walker would be "entitled to the benefit of the more favorable intervening statute." People v. Williams, 60 Ill.2d 1, 17, 322 N.E.2d 819, 828 (1975); People v. Gill, 29 Ill. App.3d 356, 358, 330 N.E.2d 552, 554 (5th Dist. 1975). Recalculation of Walker's sentence to conform with the prescripts of the Code would reduce at least the minimum term of Walker's sentence; Walker's challenge, if successful, could therefore shorten the length of his sentence, and habeas relief would accordingly be appropriate.
Because subparagraph (c) limits the minimum sentence to twice the lowest authorized under 1005-8-1 for the most serious felony involved, the court may prefer to give a concurrent sentence in those situations where a higher minimum than the lowest authorized under section 1005-8-1 may be set by the court in a single case. Council Commentary, Ill.Rev.Stat. ch. 38, ¶ 1005-8-4 (1973), quoted in People v. Gill, 29 Ill.App.3d 356, 330 N.E.2d 552, 553 (5th Dist. 1975). See also United States ex rel. Henderson v. Morris, 670 F.2d 699, 701 (7th Cir. 1982) ("The Illinois Supreme Court has repeatedly found that such a modification, from consecutive to concurrent sentences, is a proper way to resolve the dilemma created by the application of Section 5-8-4 to pre-Code consecutive sentences.") (citations omitted).
In Athey the defendant was attempting to avoid being taken into custody by the police officer and a shooting of the officer was avoided only because the gun jammed. See also People v. Gill, 29 Ill. App.3d 356, 330 N.E.2d 552. Under the circumstances of this case we believe the sentence imposed should be reduced to a minimum of 10 years and a maximum of 30 years, a sentence which we believe comports with the seriousness of the offense and takes into account defendant's past record.
The same modification has been made by other courts. ( People v. Henderson (1976), 36 Ill. App.3d 355, 344 N.E.2d 239; People v. Gill (1975), 29 Ill. App.3d 356, 330 N.E.2d 552; People v. Sumner (3rd Dist. 1976), 43 Ill. App.3d 133, 356 N.E.2d 819.) These decisions negate defendant's contention that he has a "vested right" to be resentenced to consecutive terms whose aggregate minimum is 28 years.
This case appears unique on this point. In the cases cited by appellants and the State ( People v. Morgan, 59 Ill.2d 276, 319 N.E.2d 764 (1974); People v. Williams, 60 Ill.2d 1, 322 N.E.2d 819 (1975); People v. Gill, 29 Ill. App.3d 356, 330 N.E.2d 552 (5th Dist. 1975)), the defendants had been sentenced prior to July 1, 1974, but had direct appeals pending when the law was changed to allow aggregate minimums of twice the highest minimum sentence for the two most serious felonies involved. (P.A. 78-939, § 1, effective July 1, 1974.)
(P.A. 78-939, see Cumulative Annual Pocket Part, Ill. Ann. Stat. ch. 38, § 1001-1-1 et seq., at 102 (Smith-Hurd 1975-1976).) See People v. Williams, 60 Ill.2d 1, 16, 17, 322 N.E.2d 819; also People v. Gill, 29 Ill. App.3d 356, 330 N.E.2d 552. • 8 The State objects to fixing the minimum under the law as it was in effect upon the date of sentence and takes the position that all of the sentences should run concurrently in accordance with the common law record.