APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
J. FITZGERALD, Judge, presiding.
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:
Defendant appeals from a sentence of four to eight years after revocation of probation. On appeal he contends it was error to revoke probation for failure to make restitution and that his sentence was excessive.
On March 25, 1968, John Mylander entered a plea of guilty to three indictments, each charging him with theft by deception. He was properly advised of his rights and further advised that he might be sentenced to one to ten years in prison on each indictment. The defendant persisted in his plea and the court accepted it. The defendant then moved for probation.
On April 15, 1968, the defendant, appearing before the same judge, pleaded guilty to a fourth, similar charge. A hearing was then held in aggravation and mitigation on the four charges.
In mitigation the defendant asked the court to take into consideration his probation report which revealed the following: The defendant is 42 years old, married, with four children. He has been self-employed as a general contractor for 18 years. He has no prior felony convictions.
Defense counsel then painted a picture of a successful business collapsing under economic strain. Defense counsel asked the court to grant probation for the benefit of the innocent victims.
The court in placing the defendant on five years probation stated:
"That that money [restitution] be repaid within the period of probation, that at the end of the first year this matter will again be brought forth before this Court to determine whether or not any effort has been made on behalf of the defendant to make this payment;
* * * It is the Court's feeling that by sending this man to the penitentiary, and not affording him an opportunity to repay these people, would be working more of a hardship on the victims than it would be on the defendant.
If the defendant refuses to, and in no manner makes any effort satisfactory to this Court, showing that he hasn't made some repayment, substantial repayment, then, of course, it would be the Court's duty at that time to sentence the defendant to the State Penitentiary and it means that I have the right to sentence him to the State Penitentiary for a period of not less than one nor more than ten years on each charge, which means that the defendant could spend a considerable period of time in the State Penitentiary."
The probation orders *fn1 included the following conditions: that the defendant shall pay a total sum of $62,230 as total restitution and that he "shall pay no stipulated sum each month, but on or about April 15, 1969, the Probation Department will make a report to the court as to the amount of restitution paid by the defendant," and that the defendant shall make monthly reports to his probation officer.
On April 10, 1969, the Probation Department wrote to the defendant advising him to appear in court on April 15, 1969, as per the conditions of his probation.
On April 15, 1969, the defendant did not appear and a bench warrant was issued for his arrest. Bail was set at $10,000. The warrant was served and on June 25, 1969, the defendant appeared in court and a hearing was held on his violation of probation. Mr. Pines of the Probation Department informed the court that no money had been paid.
At that time Mylander stated, "There's been $6000 that was paid from the proceeds of the sale of my home, and the reason why it wasn't paid through the court is the civil court had given the title to the building to Sterczeks [one of the ...