concurring in part and dissenting in part:
I agree with the majority opinion that this conviction should be affirmed. I am not in agreement that the sentence imposed should be consecutive. At the time of this conviction, the defendant was on parole for a prior conviction for armed robbery committed some 4 years prior to the present conviction. The offense here committed is a Class 3 felony, punishable by a minimum term of 1 year and a maximum term of 10 years, and the sentence alternatives available to the trial court for this offense were not utilized if, by reason of the defendant’s prior record, the trial court was under the impression that the defendant needed a longer period of incarceration. Consecutive sentences are not to be imposed unless the trial court, having regard to the nature and circumstances of the offense and the history and character of the defendant, is of the opinion that such term is required to protect the public from further criminal conduct by the defendant. In this case, since the trial court did not utilize either the highest possible minimum sentence, or the highest possible maximum sentence, the use of a consecutive sentence offends against the statutory proscription.
This seems to be rather clearly indicated by the foHowing coHoquy that took place at the conclusion of the hearing on aggravation:
“THE COURT: Was your previous trial a plea of guilty or was it a jury trial?
MR. AGANS: It was a plea of guilty.
THE COURT: You plead guilty to it?
MR. AGANS: Yes, sir.
THE COURT: Well, that’s an admission that you did it, or you wouldn’t have plead guilty.
I’d like to give you a break. I feel sorry for you.
MR. AGANS: I know it’s impossible now, sir.
THE COURT: I feel sorry for you. Now I’m going to give you a break. You have to go to the penitentiary.
MR. AGANS: Yes, sir.
THE COURT: But I’m going to give you a break. I’m going to sentence you to a minimum of two years and a maximum of five. And I think that’s a break.
I don’t know how you feel and the people back there feel, but I think that’s a break. There isn’t any doubt in my mind about it. Okay, that’ll be the sentence of the Court.
MR. KASTEN: Your Honor, will that run concurrently or consecutively with the sectence [sic].
THE COURT: No, it’s going to be consecutively with any sentence he’s got,
Let’s see, it’ll have to be — it’ll have to be two to six by our appellate rules, I think, that the minimum should be — they’re—they’re holding the minimum should be a third of the maximum.
MR. KASTEN: Right, three to one.”
In view of the foregoing, I dissent from that portion of the opinion approving consecutive sentence.