Appeal from the Circuit Court of Macon County; the Hon. John
P. Shonkwiler, Judge, presiding.
JUSTICE MCCULLOUGH DELIVERED THE OPINION OF THE COURT:
Defendant pleaded guilty to retail theft with a prior theft, a Class 4 felony, and was sentenced in September 1984 to one year of intensive probation supervision. (See Ill. Rev. Stat. 1983, ch. 38, pars. 16A-3(a), 16A-10(2).) Her probation was revoked after hearing, and she was sentenced to three years' imprisonment. She appeals from the judgment of the circuit court of Macon County, arguing that the trial court erred in sentencing her for the revoking offenses rather than the offense for which she was originally placed on probation.
As one of the conditions of defendant's probation, she was ordered to perform 130 hours of community service as directed by the probation office. In November 1984, several thefts occurred in the county building. During the time frame of the thefts, the defendant was working at the building on Wednesday nights as a community project through the Probation Plus program, and cleaned the floor on which the thefts occurred. On two occasions, postage stamps were taken from Judge Sappington's office, from a container on his desk. In addition, a $20 bill was taken from the middle drawer of an unlocked desk in the purchasing office. On questioning after Miranda warnings, defendant admitted to investigators that while working on the assigned floor, she had taken stamps on two occasions and had also taken the $20 bill. A report of violation of intensive probation supervision was filed on December 5, 1984. The allegations of the petition were found proved after hearing on January 9, 1985, and the court proceeded to sentencing.
The State presented no evidence in aggravation, and asked that the defendant be sentenced to three years' imprisonment, the maximum sentence for the original offense (see Ill. Rev. Stat. 1983, ch. 38, par. 1005-8-1(a)(7)). The presentence report included the following as adult offenses of the defendant apart from the 1984 theft for which she was placed on intensive probation supervision:
Date Offense Case Number Disposition
4-16-71 Theft by Deception 71-CM-447 Fined $75 plus $15
9-28-72 Theft of Property 72-CM-1363 Fined $25 plus costs Under $150
4-3-74 Theft of Property 73-CM-1101 Fined $50 plus $15 Under $150 6-18-74 Theft of Services 74-CM-636 Fined $100 plus $27.40
2-11-75 Theft of Property 75-CF-429 5 years probation (Second Offense)
8-10-77 Violation of Probation 75-CF-429 1-3 years DOC
3-12-82 Retail Theft with a 81-CF-650 1 year DOC Prior Theft Conviction
Defendant testified in mitigation that she recognized that she had a problem with stealing and said she had tried, without success, to obtain help for her problem through a mental health center. Defendant argued that, if imprisonment were imposed, a one-year term would be appropriate to the case.
In pronouncing sentence, the trial judge's remarks included the following:
"THE COURT: Mrs. Young, the Court has heard the evidence. It has heard the arguments of counsel, the recommendations of both the * * * Special Prosecutor, and your attorney, and it has heard your comments, your statement under oath. The Court notes that you have no record as a juvenile. * * * However, there are seven prior theft convictions. You were offered intensive supervision, and I think part of the conditions of your supervision was to clean the courthouse county building, and during that period of time you took stamps and you took money out of the drawer. I think it commendable that you tried to go to Macon County Mental Health. I think that they were of little help to you. I think it is a tragedy. Maybe you could have been helped, I don't know. There comes a point in time where after being given one chance after another, you fall short. The Court has no other choice than to sentence you to the penitentiary. I don't know how much help you will receive at the penitentiary, but the Court has to consider the welfare and protection of the public. You understand that?
(Defendant nodding in the affirmative.)
THE COURT: Mrs. Young, after hearing the evidence, the Court is revoking your intensive probation/supervision. The Court further having a due regard for the character of the defendant, and the nature and circumstances of the offense, with public interest, finds a sentence of imprisonment is the most appropriate disposition.
In reaching that conclusion, it has taken into account Mrs. Young, your past criminal history and also the nature of the offense. It has taken into account that you did not act under strong provocation. You did not use the twenty dollars to buy food. You gave it away to one of your children. The stamps were used to mail Christmas cards. There were not substantial grounds tending to excuse or justify your criminal conduct, and it was not induced or facilitated by someone else. It was your idea. I do not think that your criminal conduct was the result of circumstances unlikely to reoccur. I think that it will reoccur unless you decide to stop this conduct on your own. I don't think you have proven to the Court that you will not comply to the terms of further probation." (Emphasis added.)
On appeal, the defendant maintains that after revoking her probation, the trial court abused its discretion by sentencing her to a term of imprisonment for the revoking offenses, rather than for the offense for which she was originally placed on probation, as shown by the court's remarks in the last quoted paragraph above. The original offense, to which the defendant pleaded guilty as charged, was theft from a retail ...