specially concurring:
While I concur in the result of the majority opinion, I disagree with that portion which implies that this court has the right to order probation. (See, People v. Brown (1967), 83 Ill.App.2d 411, 420.) This question has not been passed upon by our Supreme Court; however, see, People v. Kurtz (1987), 37 Ill.2d 103, 111.
Quoting from Rule 615(b)(4), the majority establishes that the reviewing court may “* * * reduce the punishment imposed by the trial court * * *.” continuing, the opinion by inference, interprets the word “punishment” to include “probation.” I cannot agree. “Punishment” is the actual penalty imposed; “probation” is the suspension of punishment. While penalty and punishment are synonymous (Featherstone v. People (1902), 194 Ill. 325, 334) punishment and probation are not.
Common usage has erroneously fostered the phrase, “sentenced to probation.” After a judgment of guilt, a sentence is the pronouncement of punishment. Since, by its definition, probation is the suspension of punishment, it follows that one cannot be sentenced to probation. “A sentence * * * cannot be synonymous with the grant of probation entitling a convicted defendant to escape a punishment * * (The People v. Bardens (1946), 394 Ill. 511, 517. See also, People v. Nicholson (1948), 401 Ill. 546, 551.) Properly, one is “allowed probation” or “admitted to probation.” See, Probation Act, Ill. Rev. Stat. 1969, ch. 38, sec. 117 — 1 et seq.
While Rule 615(b) (4) empowers this court to reduce the punishment, we are not empowered to void the punishment after a judgment of guilt. To order probation on appeal would suspend and therefore effectively void any punishment imposed.
Allowing a defendant probation is a matter which remains solely within the discretion of the trial court. This discretion “is not even reviewable,” unless the defendant shows affirmatively that the action of the trial court was purely arbitrary. People v. Molz (1953), 415 Ill. 183, 189-191; People v. Carpenter (1953), 1 Ill.2d 347, 349-350; People v. Pelikan (1955), 6 Ill.2d 275, 277; People v. Hamby (1955), 6 Ill.2d 559, 563, 567 (overruling People v. Donovan, 376 Ill. 602); and People v. Saiken (1971), 49 Ill.2d 504, 514-515.