x999-2" type="dissent">Mr. PRESIDING JUSTICE CRAVEN,

dissenting:

The result reached by my colleagues is in accord with the intention expressed by the trial judge. I cannot agree, however, that the sentence in this case should be consecutive to the earlier “sentence.” Paragraph 1—7(m) of ch. 38, Ill. Rev. Stat. 1969, contemplates that when a person shall have been convicted of more offenses which did not result from the same conduct, the second sentence may be made to be consecutive to the sentence first imposed. The first “sentence” imposed upon this defendant was five years of probation with a condition that the defendant serve one year in the State Penal Farm. I agree with the majority that such is not a “sentence” but is probation conditioned upon a period of incarceration. Such incarceration, in my opinion, is not a “term of imprisonment” for purposes of par. 1—7(m) of ch. 38, Ill. Rev. Stat. 1969.

That grant of probation was in December of 1969. In February of 1970, the defendant pleaded guilty to a second offense of burglary — a crime committed prior to the admission to probation, although that fact was not made known to the trial judge at the time he admitted the defendant to probation. The sentence imposed in February of not less than eighteen month nor more than five years cannot be a consecutive sentence. If the defendant first serves the twelve months — clearly a definite term — and then is incarcerated for the indeterminate sentence, he would receive no probation supervision absent release at the minimum under the second sentence, at which point he would, at least technically, be subject to both probation supervision and parole supervision. This is an undesirable result, even if permissible.

If he is not so released at the expiration of his minimum, presumably his period of probation would be running while he is incarcerated on the indeterminate sentence — a consequence clearly not contemplated.

This unnecessary procedural mix-up, arising out of the peculiar facts of this case, could have — and I suggest should have — been avoided by the imposition of a sentence in the second case that would properly reflect the trial court’s determination of a realistic minimum. The offense of burglary carries a penalty of an indeterminate term of not less than one year in the penitentiary, thus making available to a sentencing judge an infinite range of possibilities.

Inasmuch as the original period of incarceration was not a sentence but rather a condition of probation, the subsequent action of sentencing the defendant for a period of not less than eighteen months nor more than five years cannot be consecutive. By definition, a consecutive sentence contemplates a pre-existing valid sentence — and here there is none. I would affirm the sentence and delete as impermissible surplusage the references in the judgment and in the mittimus which relate to consecutive sentence.

This case demonstrates the desirability of consolidating all outstanding offenses, so far as possible, prior to the time of sentencing, as set forth in para. 5.2(a) of the American Bar Association Standards Relating to Sentencing Alternatives and Procedures; likewise, the desirability of the provision contained in para. 3.4 of such Standards as the same relates to concurrent and consecutive terms.

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