dissenting;
I agree with the court’s decision insofar as it states that the trial judge could consider, upon revocation of probation, sentencing alternatives available under the Unified Code of Corrections. However, I do not believe that the alternative of periodic imprisonment was or is available to the trial judge in this case.
At the time of the probation revocation proceedings, defendant had served well over two years’ probation. Section 5 — 6—4(h) of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 6—4(h)) provided that time served on probation “shall be credited * » * against a sentence of * * * periodic imprisonment * * Since the maximum time for periodic imprisonment is two years (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 6—3(b)(1)), the mandatory credit provisions would have prohibited such a sentence. This court holds that periodic imprisonment is now available because of a change, effective July 1, 1974, that time on probation is credited “unless the court orders otherwise.” This provision is available only if it is less than under prior law. (Ill. Rev. Stat. 1973, ch. 38, par. 1008 — 2—4.) A change from mandatory to discretionary credit cannot, in my opinion, be considered less harsh. Nor do I believe that the section of the statute on statutes cited by the majority (Ill. Rev. Stat. 1973, ch. 131, par. 4) supports the decision. The discretionary credit provision does not mitigate defendant’s sentence, and it is that provision which must be applied.
On remand, the trial judge, in order to sentence defendant to periodic imprisonment, would have to deny credit for time spent on probation. I do not see how it can be argued, in construing section 5 — 6—4(h), that denial of credit is less harsh than allowance of credit.
Accordingly I would affirm the sentence imposed.