APPEAL from the Circuit Court of Kane County; the Hon. JOHN S.
PETERSEN, Judge, presiding.
MR. JUSTICE HALLETT DELIVERED THE OPINION OF THE COURT:
The defendant, Raymond C. Schultz, was placed on probation for 3 years after he had pleaded guilty to forgery and theft in excess of $150. Subsequently, upon the revocation of the defendant's probation, the court sentenced him to concurrent terms of imprisonment of 1 to 5 years on the original conviction. On appeal the defendant contends (1) that the trial court failed to properly admonish him in accepting his pleas of guilty to the offenses; (2) that the trial court considered incompetent evidence in sentencing the defendant; and (3) that the defendant is entitled to have his term of imprisonment credited with the time he had successfully served on probation, pursuant to section 5-6-4(h) (Ill. Rev. Stat. 1973, ch. 38, par. 1005-6-4(h)).
Having reviewed the record, we find that we are without jurisdiction to review the proceeding in which the defendant was convicted upon his pleas of guilty to the offenses. Further, we find that there was no impropriety at the sentencing hearing which warrants a remand for another hearing in aggravation and mitigation. However, the time served on probation by the defendant must be credited against the sentence of imprisonment. We therefore affirm the judgment of the trial court as modified.
On February 2, 1970, the defendant entered pleas of guilty to the offenses of forgery and theft in excess of $150. Thereafter, on February 20, 1970, a 3-year term of probation was imposed upon the defendant.
A petition to revoke the defendant's probation, alleging that the defendant had left the State of Illinois in violation of the conditions of his probation and had written 26 checks drawn on insufficient funds, was filed by the State on October 30, 1972. At the conclusion of the hearing on this petition, the court revoked the defendant's probation and ordered the probation officer, Mr. Mundwiler, to prepare a presentence report.
At the sentencing hearing, which was held on November 24, 1972, the State rested upon the evidence which it had presented at the probation revocation hearing. In mitigation, the defendant testified that he had been paying alimony and child support, had made restitution in accordance with the terms of his probation, was employed when he voluntarily answered the warrant for his arrest, and had not been convicted of any criminal offense while on probation. Scott Wassinger testified on behalf of the defendant that he was employed at the same business establishment as the defendant, that the defendant was a good worker, that the defendant had not "been in any trouble" while on probation, and that the defendant had told him that he might have to "bounce" a check to pay the support payments for his children and former wife and for lawyer's fees connected with his divorce.
The court then asked Mr. Wassinger if the defendant had talked to him "about turning himself in because he had written twenty-six checks in the amount of $1200." (Tr. 84; A.22) In response to the court's examination of Mr. Wassinger, the defendant admitted that he had written 26 checks amounting to $1200 on his own account, but that he intended to make restitution. (Tr. 84-85; A. 22-23)
At this point in the sentencing hearing, the court read into the record certain items contained in the probation or presentence report. The first of these was a letter written by Mrs. Jack Grant to the Gulf Oil Corp., stating that Raymond Schultz had lived with her and Mr. Grant for a brief period of time, and accusing Raymond Schultz of the unauthorized use of their credit card and car. The defendant stated to the court that the accusation was not true, and that Mr. Grant had given him permission to use both the credit card and the car while he was living with them in California. (Tr. 86; A. 24)
Next, the court read a letter from a representative of Gulf Oil to Mrs. Grant requesting that she furnish Raymond Schultz's address and inquiring if Raymond Schultz had been given authority to use the Grant's credit card at any time. The letter written in response was read by the court into the record.
A newspaper report, stating that Raymond Schultz had been arrested for disorderly conduct when he allegedly directed traffic to proceed the wrong way on a one-way street, was read by the court. The court asked, "Is that a mistake?" The defendant responded that it was a mistake and that the incident arose when a train derailed, causing a traffic jam. He asserted that he and others had not directed the traffic to go the wrong way on a one-way street, but had directed the cars to back up on the street to a point of exit, enabling the traffic to circumvent the railroad crossing. The defendant stated that the charge had been dismissed. With this explanation, Mr. Wassinger agreed, and added that in dismissing the charge, the court said that "we were actually doing the policemen's work." (Tr. 88-89; A. 26-27)
Without commenting on this explanation, the court read from the probation report that the defendant had been in Memphis, Tennessee, on October 24, 1972, and had pawned a tape player there. The defendant responded that this report was accurate.
At this point, defense counsel objected to the use of these materials at the sentencing hearing because it deprived the defendant of the right to cross-examine the writers of these letters. The objection was not ruled upon by the court, nor was it raised again.
The State recommended concurrent sentences of 2 to 5 years, while counsel for the defendant urged the court to impose sentences with a one year minimum. Thereafter, the court ascertained that the probation officer, Mr. Mundwiler, had never communicated with Mrs. Grant personally. After commenting on the defendant's admission concerning the checks drawn on insufficient funds, the court sentenced the defendant to serve concurrent sentences of not less than 1 nor more than 5 years in the penitentiary.
• 1 On appeal, the defendant's first contention is that the court failed to properly admonish him regarding the nature of the offenses charged and the possible penalties involved. Further, the defendant contends that the record does not reflect an express and understanding waiver of his right to a jury trial. Thus, the defendant argues that his conviction should be reversed, allowing him to withdraw his original pleas of guilty and to plead anew. We find that we are without jurisdiction to ...