¶1dissenting:
¶2On September 28, 1974, the defendant went into Oat & Eva’s Cafe in Petersburg, Illinois, and ordered two sandwiches, fries and a drink. The waitress gave the order to Eva Lynn, the owner of the cafe, who prepared the food. The defendant remained in the cafe for about 1M hours. During that period of time, he borrowed or “bummed” cigarettes from Otis Lynn, the husband of the proprietor of the cafe, and also he was seen asking other customers for cigarettes. The waitress gave the defendant his check for the amount of the bill (*2.89). The defendant then informed her that he did not have any money; that he left his money in his home in Springfield; and then he asked, “Can I go up to my grandmother’s and get my money? I will be back within an hour.” Thereafter, the waitress conferred with Otis Lynn. He advised her to have the defendant sign the back of the ticket so that they would know he owed the money. The defendant signed his name on the back of the ticket and left. The ticket for the amount of $2.89 was placed in the cash drawer. The defendant did not return.
¶3In a subsequent conversation with police officers, this story was related by Lynn. The police officers of the city apparently suggested that a complaint be filed.
¶4On October 24,1974, a complaint was filed in the circuit court charging the defendant with theft under $150, in violation of section 16—1(a) of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 16— 1(a)). The defendant appeared in court without counsel and asked to be released upon his own recognizance. This request was denied and bail was set in the sum of $1000. The motion for release on his own recognizance was renewed on November 8, 1974, and again denied. The case proceeded to trial on December 19,1974, before a jury. A verdict of guilty was returned by the jury. A post-trial motion was filed and that motion was denied on January 2, 1975, and the defendant was then sentenced to a term of 364 days for the offense. Bond pending appeal was then fixed by the court in the amount of $4000. Notice of appeal was filed on the January 2,1975, date. As of that date, the defendant had been continuously in custody for 72 days.
¶5After the notice of appeal, this case was not ready for submission to this court until April 19, 1976, this delay arising out of various extensions of time granted by us in connection with the motions for extension filed by counsel. The case was submitted to this court for opinion on May 28,1976. This date of submission was some 8 months after the defendant had been discharged, after having served the sentence imposed. Thus, from the date of the offense through this appeal, well over two years will have expired. The defendant will have served his sentence. Any issue with reference to a review of the excessive sentence will, under these circumstances, be utterly meaningless. It is to be regretted that the constitutionally intended inexpensive and expeditious appeal cannot be processed faster in this, a time of expanding litigation and expanding volume of appeals. An appeal as a matter of right under circumstances such as this amounts to no appeal at all. Surely there must be a better and faster way.
¶6As I view this record, the evidence is not sufficient to convict the defendant of the offense of theft. When the defendant indicated he did not have the money to pay the bill, that he would get the money and pay the bill, the owner of the cafe became a creditor, however unwilling. As of that moment, the relationship between the owner of the restaurant and the defendant was one of creditor-debtor and not victim-thief. The cited cases of Kamsler and Baddeley do not persuade that these facts are sufficient to establish theft.
¶7The penalty imposed for this offense was excessive even in light of the prior criminal record noted in the majority opinion. We should note the excessive sentence as plain error. Section 11, article I, of our Constitution, mandates that penalties should be imposed according to the seriousness of the offense and with the objective of restoring the defendant to useful citizenship. The sentence imposed in this case is so excessive as to offend that mandate. Indeed, it must be classified as counterproductive.