APPEAL from the Circuit Court of Boone County; the Hon. DAVID
R. BABB, Judge, presiding.
MR. JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
The defendant was charged with the offenses of burglary and possession of burglary tools. After a bench trial, the defendant was convicted on the burglary charge and acquitted on the possession of burglary tools charge. The defendant was sentenced to a term of three years' imprisonment.
The defendant presents a single issue for review. Did the trial court abuse its sentencing discretion where it first observed the appropriateness of probation, but subsequently imposed a penitentiary term. He posits alternate theories in this regard. On the one hand, defendant argues that the trial court had sentenced him to a term of probation on October 19, 1978, and thereafter the November 14 sentence of imprisonment constituted an improper revocation of probation since no probation revocation charge had been brought under section 5-6-4 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005-6-4). On the other hand, defendant argues that since, on October 19, the court had found him eligible for probation, the sentence of imprisonment subsequently imposed constituted an abuse of discretion. We reject both arguments as being without merit and affirm the conviction.
The defendant, age 21, and his 18-year-old brother, were apprehended by police who responded to a burglar alarm in the basement of the Central Grain building in Belvidere. At trial, the defense was intoxication to such a degree that the defendant could not have the requisite intent to commit the crimes charged. The trial court, as noted above, rejected that theory.
A sentencing hearing was held on October 19, 1978. After the trial judge offered the prosecution and the defense the opportunity to introduce evidence or to make arguments or statements, he made the following pronouncement:
"THE COURT: I have carefully considered this matter and have reviewed again all of the reports, letters and records in this matter and it is the order of this Court that you, Steven D. Rands, having been found guilty of burglary, a felony, shall be sentenced to the Department of Corrects [sic], State of Illinois, Adult Division, for a period of three years. I will order a stay of execution of mittimus for thirty days. During this thirty day period you will be eligible to apply to the Community Correctional Center of the Department of Corrections, and if you are accepted by that program this sentence will be vacated. You will be sentenced to a term of probation for a period of two years and as a condition of said probation will be sentenced to one year in the Winnebago County Correctional Center of the Department of Corrections. The terms of your probation are that you shall not violate any laws of the State of Illinois, or any other jurisdiction; that you shall report regularly to your Probation Officer and co-operate fully with any counseling recommended by the Probation Officer or the Department of Corrections concerning drugs or alcohol and that you shall also gain employment and be steadily employed and pay costs and charges for board and room. The Probation Officer to make arrangements for any evaluation by the Winnebago County Correctional Center. Defendant to be granted credit for time served heretofore on sentence to the Department of Corrections but no credit will be given for time served prior to this date should it be reduced as I have stated herein. Do you have any questions of the Court or your attorney, Mr. Rands?
On November 13, 1978, the defendant filed a motion for reconsideration of sentencing. In that motion the defendant alleged that he applied for the work release program at the Community Correctional Center of the Department of Corrections, and was rejected as an applicant for said facility after a personal interview. The motion further alleged that while he was incarcerated at the Boone County jail, the defendant observed and heard a jailer approach the interviewers from the Illinois Department of Corrections and voluntarily give them information to the effect that the defendant was a security risk and that he was involved in escape attempts from the jail.
On November 14, 1978, a hearing was held on the defendant's motion for reconsideration of sentencing. The defendant testified that the jailer told the interviewers of the Illinois Department of Corrections that the second day the defendant was in jail he, his brother and two others planned an escape. According to the defendant, the jailer told the interviewers that the defendant and the others were going to kidnap the jailer and take him to Mexico. The defendant denied the truth of that statement. The defendant also testified that the jailer told the interviewers that the defendant was in "Solitute" because the defendant had flooded out his cell block.
The court stated for the record that he had read the Department of Corrections letter, which stated that the Department had considered the documentation of the presentence report and the defendant's attitude during the interview with its representative. The court observed that the letter indicated that the Department of Corrections was of the opinion that the defendant was an "* * * individual requiring strict control in an institutional setting * * *," and having considered the defendant's behavior while at the Boone County Public Safety Building, was of the opinion that the defendant was inappropriate for the work release program.
The court went on to state:
"THE COURT: * * * The Court does note that the investigation that was presented here is in the nature of a supplemental presentence report; that necessarily in a presentence report there is much hearsay evidence presented to the probation officer or other person who is preparing the report; that the Defendant has an opportunity to dispute or confront any of the statements that are reported in the presentence report; that also there are necessarily, as the result of any investigation of a person charged with a crime, many potentially prejudicial statements which are made to the investigating officer which may or may not be described from the report or may or may not influence the actual nature of the report and the Court itself having considered the presentence report, the facilities [sic] that are available through the Winnebago County Correctional Center and the Court taking into account and realizing that the Department of Corrections has discretion as to whether they accept a person committed to the correctional center and the Court does not have authority to place a person in this facility without the consent of the Department of Corrections, it would appear to the Court that even accepting all of the testimony of the Defendant that the occurance [sic] described did happen, that the Supervisor did have in her discretion the power to make a judgment based upon the presentence investigation and the interview with the Defendant that would reasonably sustain the execution in denying the admission to the Winnebago County Correctional Center. What I am saying, if everyting [sic] stated here is true it would appear nonethe-less that the Supervisor of the Correctional Center had it in her discretion to make this decision and that there was evidence that would sustain that. Therefore, I'm going to deny the motion to the extent that the Court would make a finding that any of the Defendant's rights have been violated by this exercise of discretion. However, the Court will on your motion, Mr. Russell, fully reconsider the sentence that has been imposed and will hear any additional evidence which you will wish to present."
The defendant presented no further evidence. The court summed up the evidence and considerations he had reviewed and then sentenced the defendant to a three-year term in the Department of Corrections. This appeal followed.
Defendant's initial argument that he was sentenced to probation on October 19, 1978, and then probation was improperly revoked on November 14, 1978, is easily dismissible. Quite clearly, defendant was not sentenced to a term of probation on October 19, 1978. The court announced alternative sentences of imprisonment and probation with work release, the latter dependent upon an acceptance into the program. When acceptance of the defendant was denied, it was incumbent on the court to then impose an appropriate sentence. The defendant's "Motion for Reconsideration of Sentencing" brought this matter before the court on November 14, ...