The opinion
Mr. JUSTICE HOPF, concurring in part and dissenting in part:
I concur with the majority in affirming the conviction of the defendant of the crimes as charged. As to the question of the propriety of the trial court’s procedure in sentencing the defendant to consecutive terms in the State penitentiary, I dissent.
At the sentencing hearing the court noted that consecutive sentences could not be imposed unless it was “# * "of the opinion that such terms were required to protect the public from further criminal conduct.” This is not an entirely correct statement of the law. Section 5 — 8—4(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—4(b)) provides, “The court shall not impose a consecutive sentence unless, having regard to the nature and circumstances of the offense and the history and character of the defendant, it is of the opinion that such a term is required to protect the public from further criminal conduct by the defendant, the basis for which the court shall set forth in the record.” Specifically the court has left off the words “by the defendant.” This leads to a question of whether the court could have been considering other matters, such as deterrence of crime generally.
It should also be noted that the legislature rewrote subsection (b) effective February 1, 1978, and changed the law which was in existence which read as follows: “* ° *, the basis for which the court may set forth in the record,” and changed that clause to read “* * * the basis for which the court shall set forth in the record,” making this recitation mandatory. The majority deemed that the statements made by the court at the time of meting out the consecutive sentences met these requirements. I disagree.
There is no question that the character of the crimes and the attending circumstances were of a violent nature and possibly would have merited the imposition of an extended term pursuant to section 5 — 8—2 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—2). However, to qualify for the imposition of consecutive sentencing there is the qualification that the sentence be necessary to protect the public from this defendant. People v. Bolden (1978), 62 Ill. App. 3d 1009 .
The language used by the trial court as stated earlier appears to be somewhat confusing and could have been as apropos of the violent nature and character of the crimes as it could be to the necessity of protecting the public from this defendant.
Further the court pointed out that it had considered certain mitigating factors and for this reason sentenced the defendant to less than the maximum or 25 years for armed robbery. Then the court sentenced the defendant to concurrent terms of 30 years for the attempt murders to run consecutive to the armed robbery sentence. I find this to be somewhat contradictory.
I believe any confusion that exists could have been clarified had the court specifically set forth in the record what factors it considered in arriving at its decision that a consecutive sentence was necessary to protect the public from this defendant. I would have remanded the case to the trial court for a clarification and resentencing. People v. Henry (1977), 47 Ill. App. 3d 545 .