NOVEMBER 23, 1971.
THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
GARY MICHAELS ET AL., DEFENDANT-APPELLANT.
APPEAL from the Circuit Court of Livingston County; the Hon.
R. BURNELL PHILLIPS, Judge, presiding.
MR. JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT:
The defendants, Gary Michaels and Danny Lee Crull, waived indictment and pleaded guilty to Information charging burglary. The defendants had burglarized a service station where they had each previously been employed. They took some $328 in cash and something less than $300 in checks, together with some rolls of coins.
The defendant Michaels was 18 years old at the time of the offense and had no prior criminal record other than an arrest for illegal possession of alcohol. Michaels filed a petition for probation. Probation was denied and he was sentenced to the Illinois State Penitentiary for a term of not less than 2 nor more than 5 years.
The defendant Crull was also 18 years old, had no prior criminal record other than traffic offenses. His petition for probation was denied and he was sentenced to a term of not less than 3 nor more than 10 years in the Illinois State Penitentiary.
We have consolidated these two cases for purposes of this appeal since the issues are essentially the same.
It is first urged that the trial court did not sufficiently admonish the defendants as to the nature of the charge nor did the court determine that the defendants understood the nature of the charge. It is further asserted on this appeal that the trial court abused its discretion in denying probation.
At the time of the oral argument and in view of the fact that the briefs of the People agree with the assertion that the punishment imposed by the court was excessive, counsel for the defendants indicated a waiver of the asserted error with reference to the admonishment in the event that this court accepts the recommendation of the state's attorney that this cause be remanded with directions to the trial court to grant probation. The state's attorney candidly stated that this court should vacate the penitentiary sentences and permit the defendants to be placed on probation, and further observed that the defendants had already served as much time as could be reasonably imposed as a condition of probation.
The defendants in this case were, as we have noted, 18 years of age at the time of this property offense. Neither had a prior criminal record. We find nothing in this record that could be construed as an aggravating circumstance warranting a denial of probation under the facts of the offense and the record of the offenders. See People v. McClendon, (Ill. App.2d), 265 N.E.2d 207.
The briefs of the People are thus treated by this court as a confession of error as to excessiveness of sentence and denial of probation. Such confession of error is approved. The convictions are affirmed. The sentences imposed by the trial court are vacated and the case as to each defendant is remanded to the Circuit Court of Livingston County with directions to grant the petitions for probation in the absence of a finding of aggravating circumstances subsequent to the sentences here imposed, and if probation is granted, to determine the length of the period of probation, and the terms and conditions thereof in accordance with the statutory provisions relating thereto.
Convictions affirmed; sentences vacated, and causes remanded with directions.
SMITH, P.J., and TRAPP, J., concur.
© 2002 VersusLaw Inc.