People v. Dickinson (13 Ill. App. 3d 469, 1973)

Mr. PRESIDING JUSTICE CRAVEN

delivered the opinion of the court:

The grand jury returned an indictment which charged defendant as having “knowingly possessed a controlled substance, namely secobarbital, in a quantity less than 200 grams”, in violation of Illinois Revised Statutes, 1971, ch. 56%, par. 1402(b). On November 1, 1971, defendant was arraigned and pleaded not guilty. Subsequently, defendant withdrew his plea and entered a plea of guilty pursuant to plea negotiations between defense counsel and the state’s attorney, who stated that the State would take no position upon defendant’s motion for probation. After admonishing defendant under Supreme Court Rule 402 (Ill. Rev. Stat. 1971, ch. 110A, par. 402), the trial court entered judgment on the plea. Probation was granted for a period of three years, the first six months were to be spent at the Illinois State Penal Farm at Vandalia.

On appeal, defendant contends that an excessive sentence was imposed; that the state’s attorney violated his agreement to stand mute at the probation hearing; that sentence was imposed for distribution rather than possession of seconal; and that the trial court failed to sufficiently admonish defendant of the consequences of his plea in accordance with Supreme Court Rule 402. The charges arose from an incident occurring behind a Springfield bowling alley on August 27, 1971. Police received a “tip” that drug transactions were taking place in that vicinity and discovered defendant behind a bush. Seconal was discovered in defendant’s possession.

Defendant asserts that the sentence imposed was excessive. Defendant was granted three years probation with the first six months to be served in Vandalia. Under the former provisions of the Criminal Code, probation could be conditioned on serving a period of imprisonment. (Ill. Rev. Stat. 1971, ch. 38, par. 117 — 2(b)(1).) However, the Unified Code of Corrections, which became effective January 1, 1973, specifically prohibits “split” sentences. (Ill. Rev. Stat., ch. 38, par. 1005 — 6—3.) In People v. Lobb, 9 Ill.App.3d 650, 653, 292 N.E.2d 750, this court noted that chapter 38, paragraph 1008 — 2—4 provides that “if the prosecution of an offense has not reached the sentencing stage or ‘a final adjudication, then for purposes of sentencing, the sentences under the Code of Corrections apply if they are less than under the prior law upon which the prosecution was commenced. (See also People v. Chupich, 53 Ill.2d 572, 295 N.E.2d 1.) Here, the sentence should comply with the new sentencing provisions; thus, the cause is remanded to the circuit court to modify the order of probation to eliminate the condition of imprisonment. See People v. Haynes, 10 Ill.App.3d 923, 295 N.E.2d 354.

A related issue pertains to the length of the probation period aHowable under the new Code. At the time defendant entered his plea, probation could be granted for a period of not less than six months and. not to exceed 5 years with no distinction being made between a felony and a misdemeanor. For good cause it could also be extended for 2 years (ch. 38, par. 117 — 1). The Unified Code of Corrections specifies that for a felony probation shall not exceed 5 years and that for a misdemeanor it shall not exceed 2 years. (Ill. Rev. Stat., ch. 38, par. 1005— 6 — 2(b).) A violation of paragraph 1402(b) of the Controlled Substances Act is classified as a Class 3 felony under the new Code with penalty provisions set out at paragraph 1005 — 8—1(b)(4). Formerly, the statute provided for imprisonment in a penal institution other than a penitentiary for not more than 1 year or in the penitentiary from 1 to 8 years, and fined not more than $15,000. (Ill. Rev. Stat., 1971, ch. 56½, par. 1402(b).) In People v. Novotny, 41 Ill.2d 401, 244 N.E.2d 182, the court considered the question of whether the offense of aggravated battery constituted a felony or a misdemeanor. At page 403 of the opinion, the court stated that “