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Docket Nos. 85524, 85532 cons.-Agenda 6-May 1999.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. GOMECINDO TELLEZ-VALENCIA, Appellee.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ROBBIE J. MOORE, Appellant.

Opinion filed November 18, 1999.

JUSTICE HEIPLE delivered the opinion of the court:

Both defendants in this consolidated appeal were convicted of predatory criminal sexual assault of a child. Whiledefendants' respective appeals were pending, this court invalidated Public Act 89-428, which created this offense.Subsequently, in case No. 85524, the appellate court reversed defendant Gomecindo Tellez-Valencia's conviction, holdingthat the State could not amend the charging instrument on appeal. 295 Ill. App. 3d 122. However, the appellate court in No.85532 affirmed defendant Robbie J. Moore's conviction, allowing the State to amend the charge on appeal to aggravatedcriminal sexual assault. 295 Ill. App. 3d 676. We consolidated the two cases, and now hold that, when a defendant isconvicted of an offense later held unconstitutional, the State may not amend the charging instrument on appeal.

BACKGROUND

Defendants were both charged with and convicted of predatory criminal sexual assault of a child for acts committed in thespring of 1996. Subsequent to defendants' convictions, and while their appeals were pending, this court held that Public Act89-428 was enacted in violation of the single subject rule (Ill. Const. 1970, art. IV,