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People v. Clay

DECEMBER 6, 1971.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

ROBERT MANUEL CLAY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Kankakee County; the Hon. VICTOR N. CARDOSI, Judge, presiding.

MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

This is an appeal from the circuit court of Kankakee County.

The defendant, Robert Manuel Clay, pleaded guilty to the offense of armed robbery upon representation by the State's Attorney that two other informations charging the defendant with the crime of armed robbery would be nolle prossed and subsequently these two additional informations were in fact dismissed.

In the armed robbery for which the defendant was convicted and in one of the other two armed robberies to which he admitted committing the defendant was armed with a sawed-off shotgun.

The defendant made application for release on probation and after investigation the probation officer filed a report recommending that probation be denied. After a hearing the defendant's motion for probation was denied. A further hearing in mitigation and aggravation of the offense was had and the defendant was thereafter sentenced to an indeterminate term of imprisonment of not less than two nor more than six years.

The record discloses that at the time of the conviction the defendant was 18 years of age. He had a high school education but because of his age and inability to learn quickly enough the various jobs assigned to him his employment record is quite meager. Although not married the defendant acknowledged he is the father of a child born out of wedlock and there is evidence in the record that he contributed to the support of this child.

Prior to his arrest the defendant was a regular attendant at church and in fact was active in Sunday School and a member of the choir.

During the hearing upon the defendant's motion for probation 16 witnesses including the defendant testified in support of his motion. The witnesses included two ministers, church associates, a Boy Scout Master, a high school principal, fellow employees, the defendant's mother, his fiancee, and a gentleman who was both Clerk of the Kankakee School Board and an official with General Foods Corporation. This latter individual testified that if granted probation he would offer the defendant employment with General Foods as soon as he had an opportunity to do so.

The issues presented on appeal are whether the trial court erred in denying probation and whether the sentence imposed is excessive and disproportionate to the offense in its maximum term and thereby should be reduced.

Directing our attention to the issue regarding the denial of probation we find that our Criminal Code provides as follows:

"(a) A person who has been found guilty of any offense except a capital offense, the sale of narcotics or rape may be admitted to probation when it appears that

(1) The defendant is not likely to commit another offense;

(2) The public interest does not require that the defendant receive the penalty provided for the offense; and

(3) The rehabilitation of the defendant does not require that he receive the penalty provided for the offense * * *." Chap. ...


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