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People v. Strickland

ILLINOIS APPELLATE COURT — FOURTH DISTRICT


NOVEMBER 27, 1974.

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

v.

SAMMIE STRICKLAND, DEFENDANT-APPELLANT.

APPEAL from the Circuit Court of Sangamon County; the Hon. GEORGE P. COUTRAKON, Judge, presiding.

MR. JUSTICE SIMKINS DELIVERED THE OPINION OF THE COURT:

Defendant, Sammie Strickland, appeals from a sentence imposed upon him of 6 to 18 years after revocation of his probation. The only issue presented to this court is whether the trial court abused its discretion in imposing such a sentence upon probation revocation.

On May 26, 1972, defendant pleaded guilty to the offense of robbery in violation of section 18-1 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 18-1). Pursuant to plea negotiations with the State defendant was sentenced to 3 years' probation conditioned upon 6 months' imprisonment. Defendant was 17 years of age at the time of the offense, and the charge arose from a purse-snatching incident in Springfield, Illinois. On April 27, 1973, a six-count petition to revoke probation was filed alleging that defendant had committed the offense of burglary, various thefts, and had obtained control over a stolen vehicle (in addition to failing to report to his probation officer). The revocation petition set forth the particulars of the various acts alleged. A hearing was held on May 29 and 30, 1973, and defendant was found guilty of violating his probation on all counts. A sentencing hearing was held on July 2, 1973, at which time the State presented no evidence in aggravation but did request a 6- to 18-year sentence stating "* * * But, in light of the fact that the defendant was convicted of charges, and a total, I believe, Your Honor, of six different charges, all constituting felony offenses involving three entirely separate and distinct incidents, I believe, your Honor, that the appropriate penalty is in fact incarceration * * *." (Emphasis added.) The presentence report of the probation officer recommended incarceration. Defense counsel presented no evidence in mitigation but did state that defendant was now 18 years of age and would like to continue on probation in order to secure a job and get married. The court then stated:

"The Court: I can't do that [set aside the order revoking probation]. I think with all of the violations that the defendant has committed, that he is guilty of — uh — a conduct that justified my revoking his probation and I don't think I should set it aside.

Defendant was then sentenced to 6 to 18 years' imprisonment with credit for over a year spent on probation.

• 1 Defendant contends that the trial judge abused his discretion in imposing sentence. On the basis of the record before us, we agree. In People v. White, 93 Ill. App.2d 283, 288, 235 N.E.2d 393, 396 (4th Dist.), this court stated:

"It is clear that upon revocation of probation, sentence may be imposed for the original offense upon the conviction of which defendant was granted probation. If the act alleged to be a violation of probation constitutes another crime and sentence is to be imposed for the subsequent act, the defendant should be tried for such crime and sentence imposed under the orderly criminal processes. This does not preclude sentence on the original offense and the distinction is drawn so as to obviate any question of double jeopardy. [Citation.]

This court went on to state that an appellate court is compelled to scrutinize the sentence imposed by the trial court where an examination of the record reveals that in the sentencing process "there was a commingling of matters relating to the original offense with the conduct allegedly constituting the violation of probation * * *."

On the basis of the record before us in the instant case, we feel compelled to closely scrutinize the sentence imposed because of the possibility of such commingling. Defendant was 17 years of age when the offense was committed, no physical injury resulted to the victim of the crime, and it was defendant's first offense. At the sentencing hearing the State presented no evidence in aggravation but did call to the court's attention the fact that probation had been revoked because defendant was "convicted" of six different charges. Nevertheless, the record does not disclose any disposition of the six counts giving rise to the probation revocation. The court made no finding in imposing sentence except to state that defendant was not justified in returning to probation because of his probation violations.

• 2-4 The offense of robbery is a Class 2 felony for which "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 defendant, sets a higher minimum term * * *." (Ill. Rev. Stat. 1973, ch. 38, par. 1005-8-1(c)(3).) In imposing sentence, either initially or upon revocation of probation, the penalty provisions for the offense in question and the statutory reasons for increasing the minimum sentence should be the guiding light. However, a trial judge may consider a defendant's conduct while on probation in order to reflect the court's reassessment of defendant's "rehabilitation potential." (People v. Ford, 4 Ill. App.3d 291, 280 N.E.2d 728.) Nevertheless, the sentence imposed here cannot be explained under any of these relevant factors, and the possibility of an improper commingling of the initial offense and the conduct giving rise to the probation revocation is clearly present. Therefore, a new sentencing hearing is required.

Accordingly, the sentence is vacated, and the cause is remanded for a new sentencing hearing in conformity with the views expressed herein.

Reversed and remanded.

SMITH, P.J., and TRAPP, J., concur.

19741127

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