APPEAL from the Circuit Court of Knox County; the Hon. EARLE
A. KLOSTER, Judge, presiding.
MR. JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
Rehearing denied August 13, 1975.
Defendant Bruce Meyer pleaded guilty to the offense of involuntary manslaughter (Ill. Rev. Stat. 1973, ch. 38, § 9-3). He was sentenced to a term of 1 to 3 years in the penitentiary. Defendant contends on appeal that the trial court erred in denying his request for probation.
This cause involves a tragic incident on the night of April 14, 1974, as a result of which defendant shot and killed a close friend. Defendant Meyer was 20 years old at the time and had been out shooting his automatic pistol earlier in the day. Following dinner, he returned to his mobile home in Yates City where he went to bed about 8 p.m. Near midnight he was awakened by a boisterous card game going on in his living room. Several times he asked the participants to be more quiet. At one point he went into the living room and turned down the volume of the stereo. On another occasion he shouted from the bedroom that he was going to shoot a few holes in the wall. Finally, he walked into the living room with his pistol in his hand and pointed it at various people to let them know he was serious about the noise problem. Thereafter, while he was "waving" the gun and not pointing it directly at anyone, the pistol discharged. Douglas Suydam, one of the youths who was present, was struck in the head by a bullet and died shortly thereafter at a hospital. Meyer, who later admitted that he had not checked the gun to see if it was loaded, tried in vain to assist his mortally wounded friend.
After defendant was charged with involuntary manslaughter, he pleaded guilty, following plea negotiations with the State's Attorney. The prosecutor said he would recommend a 1- to-3-year sentence in the penitentiary and would allow defendant to request probation from the court.
The trial court gave consideration to the presentence report by the probation officer and, also, to arguments of counsel prior to denying the request for probation. The presentence report disclosed that Meyer was an only child of a pipefitter; that he had a good upbringing by his parents; that he graduated scholastically in the lower level of his high school class. Meyer had 3 different jobs at different times in his first 2 years out of school, and had held a fourth job steadily for 8 months at the time of the shooting. The probation officer said there were some grounds to believe that the best interests of society would be served by placing defendant on probation. The past criminal record of defendant Meyer consisted of one disorderly conduct conviction and several traffic violations.
The State argued only that probation would "deprecate" the seriousness of the offense. The court in denying probation stated that the "only possible basis that I can see for imposing a sentence of imprisonment rather than probation is that this was manslaughter a man died." Defendant on appeal requests not only that we find that he should have been granted probation, but that we should order probation ourselves and remand the case for determination of the duration and conditions of such probation.
This again raises the question, to which the courts have given consideration previously, of whether the appellate court has the authority, under its power to reduce sentences (Ill. Rev. Stat. 1973, ch. 110A, § 615 (b) (4), to modify a sentence of imprisonment to one of probation. We have previously noted that the Illinois Supreme Court in People ex rel. Ward v. Moran (1973), 54 Ill.2d 552, 301 N.E.2d 300, in interpreting former Article 117 of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, § 117-1 et seq.) has stated that the appellate court has no such authority, but did have authority to determine that the trial court abused its discretion in denying probation. Under the Unified Code of Corrections, probation is considered a "sentence" and the result now may well be that such power is now vested in the appellate court (People v. Rednour (5th Dist. 1974), 24 Ill. App.3d 1072, 1076-7, 322 N.E.2d 492).
• 1 As we have noted in People v. Hart (3rd Dist. 1973), 10 Ill. App.3d 857, 860, 295 N.E.2d 63, there is no absolute right to probation. Under the previous law, probation was not considered a sentence but rather a disposition which would be wholly within the discretion of the trial court. Under former section 117, a person could be admitted to probation if the court found (1) that defendant was not likely to commit another offense, (2) that the public interest did not require that defendant receive the penalty of imprisonment otherwise provided for the offense, and (3) that the rehabilitation of defendant does not require that he receive the penalty provided for the offense.
Under the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, § 1005-5-3(a), (d)), it is specifically provided that when a defendant is convicted of a felony or misdemeanor, the court may sentence such defendant to:
"(1) a period of probation, a term of periodic imprisonment or conditional discharge except in cases of murder, rape, armed robbery * * *;
(2) a term of imprisonment;
Under the following article of the Unified Code of Corrections, under the title of "Sentences of Probation and of Conditional Discharge" (§ 1005 6-1(a)), the statute provides that the court shall impose a sentence of imprisonment upon an offender if, having regard to the nature and circumstances of the offense, and of the history, character and condition of the offender, the court is of the opinion that his imprisonment is necessary for the protection of the public or that the offender is in need of correctional treatment that can most effectively be provided by a sentence of imprisonment. It is further provided in section 5-6-1(a)(3) ...