APPEAL from the Circuit Court of Cook County; the Hon. PHILIP
ROMITI, Judge, presiding.
MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT AS MODIFIED UPON DENIAL OF PETITION FOR REHEARING:
Defendant pleaded guilty to nine indictments, eight containing one count charges for the crime of theft in excess of $150 and one, No. 72-1017, containing two count charges of similar crimes. He was sentenced on each count of No. 72-1017 to concurrent sentences of not less than four nor more than eight years. On each of the other eight indictments, he was given sentences of not less than two nor more than ten years, to run concurrently with each other and with the sentences previously imposed on indictment No. 72-1017.
On appeal defendant raises the following issues:
(1) that the sentence imposed on indictment No. 72-1017 was both excessive and in violation of the Unified Code of Corrections;
(2) that the trial court erred in failing to order and/or consider a written presentence report of investigation; and
(3) that the sentences of two to ten years on each of the other eight indictments were excessive.
The stipulated evidence discloses that defendant committed the crimes of theft, *fn1 i.e., he knowingly retained monies approximating $50,000 given to him by a number of people as their agent in real estate transactions.
After a guilty plea on May 8, 1972 to indictment No. 72-1017 defendant's counsel requested a presentence investigation. The court granted the request and continued the matter for sentencing. At the next hearing on June 2, 1972 defendant's counsel advised the court of his belief that defendant would be able to make some form of restitution and the court granted a continuance stating:
"You either come in prepared to make restitution at that time (July 11, 1972) or the court will proceed with its sentencing at that time. * * * If restitution is made, we will proceed in one direction; if restitution is not made, we will proceed with sentencing in another direction."
Our examination of the record available to us reveals that subsequent to the hearing on June 2, 1972, there were no more discussions concerning a presentence investigation. On July 11, 1972 defendant was sentenced on the two counts of indictment No. 72-1017 and sentenced on the other eight indictments on August 7, 1972. Prior to this sentencing, neither the defendant nor his counsel believed it necessary or appropriate to say or add anything in mitigation.
Defendant's first contention is that the sentences imposed on indictment No. 72-1017 were excessive and in violation of the Criminal Code (S.H.A., ch. 38, § 16-1(e)2 (1973)) which classifies theft (more than $150) as a Class 3 felony. We note that the Unified Code of Corrections provides the maximum term for a Class 3 felony shall be any term in excess of one year not exceeding ten years, and the minimum term shall be 1 year unless the court, having regard to the nature and circumstances of the offense and the history and character of the defendant sets a higher minimum term, which shall not be greater than one-third of the maximum term set in that case by the court, S.H.A., ch. 38, §§ 1005-8-1(b)(4) and (c)(4).
• 1, 2 Here the minimum term of four years exceeds one-third of the maximum of eight years and the sentence should be reduced to conform ...