Opinion
No. 72-36 Conviction affirmed, sentence modified.
May 29, 1973.
APPEAL from the Circuit Court of Marion County; the Hon. E. HAROLD WINELAND, Judge, presiding.
Robert E. Farrell, of Defender Project, of Mt. Vernon, for appellant.
Ronald A. Niemann, State's Attorney, of Salem, for the People.
Defendant, Tyrone Ashby, pled guilty to the crime of theft over One Hundred Fifty Dollars in the Circuit Court of Marion County. Subsequently he was tried by the court on two counts of armed robbery and one count of aggravated battery and found guilty. By agreement, his applications for probation were consolidated. After a hearing, probation was denied and defendant was sentenced to a term of one to ten years on the theft charge and four to fourteen on the armed robbery charge with the sentences to run concurrently. Although found guilty of the aggravated battery charge he was not sentenced since the court found that this charge merged with one count of the offense of armed robbery. The court also held that he should not receive credit for the time previously spent in jail awaiting trial and sentence.
Defendant contends that it was error to deny him credit for time served while waiting trial and that the sentence imposed for armed robbery is excessive.
• 1, 2 The error in failing to allow credit for time served while waiting trial is conceded. As regards the contention that the sentence for armed robbery was excessive, the record shows that the defendant had several prior felony convictions. Also he committed the armed robberies while on bail awaiting trial on the theft charge. Defendant claims that since he seems to get involved in crime only when using alcohol, he is being sentenced for using alcohol. However he overlooks the fact that he was convicted, not of using alcohol, but of the serious crime of armed robbery. We find the sentence is not excessive.
Sentence modified to give credit for time served in jail while waiting trial and as modified affirmed.