SUPPLEMENTAL OPINION ON DENIAL OF REHEARING
Mr. PRESIDING JUSTICE SIMONdelivered the opinion of the court:
Fred Bedford was found guilty at a bench trial of armed robbery and sentenced to a term of 4 to 7 years. On appeal he contended in part that his sentence was improper because he was neither advised of nor permitted to exercise his right to elect between sentencing under the statute in effect at the time of the offense and the statute in effect at the time of sentencing. This court affirmed defendant’s conviction, but vacated the sentence and remanded the cause with directions to permit him to exercise his right to elect under which statute he would be sentenced. The State has filed a petition for rehearing.
The State’s petition initially asserts that the defendant need not have been given the opportunity to elect between the two sentencing provisions, since the provision under which he was sentenced at trial was more beneficial to him than the alternate provision could have been.
The defendant here was sentenced under the statute in effect at the time of his sentencing, the Unified Code of Corrections. The code provides that armed robbery is punishable by a minimum term of 4 years, a maximum term of more than 4 years, and a mandatory parole term of 5 years. (Ill. Rev. Stat. 1973, ch. 38, pars. 18—2(b), 1005—8—1(b)(2), 1005—8—1(c)(2) and 1005—8—1(e)(1).) The statute in effect at the time of the offense stated that the crime carried an imprisonment term of 5 years to any number of years over 5, with no parole term mandated. Ill. Rev. Stat. 1971, ch. 38, par. 18—2(b).
As the court noted recently in People v. Brown (1977), 47 Ill. App. 3d 920, 932-33, 365 N.E.2d 514, it is not always obvious whether the prior law or the new code is more beneficial to a defendant; a defendant may wish to take advantage of the possibility of periodic imprisonment under the new code, or he may choose not to serve the mandatory parole time required by the new code, after his release from prison. Although in People v. Zboralski (1975), 33 Ill. App. 3d 912, 913, 338 N.E.2d 925, the cotut did hold that a defendant has no right to choose between the two sentencing provisions if he is sentenced under the law providing for a “lesser penalty” in the actual term of imprisonment, we prefer the approach followed by the Brown cotut. Therefore, we reaffirm the rule, as our original opinion did, that fundamental fairness requires that the defendant be given the chance to choose the sentencing , alternative he considers more desirable. Brown, at 933; see People v. Hollins (1972), 51 Ill. 2d 68, 71, 280 N.E.2d 710.
The State suggests that this court overlooked the prior decision in People v. Deckard (1975), 32 Ill. App. 3d 497, 336 N.E.2d 614, in its original opinion. That decision was not overlooked by this court in its consideration of this case; it was not referred to in the court’s opinion because it involved a negotiated plea of guilty, while the defendant here was convicted after trial.
The State further argues that the supreme court’s holding in People v. Gonzalez (1974), 56 Ill. 2d 453, 308 N.E.2d 587, upon which this court in part based its determination in this case, demonstrates that there is no “absolute right” to an election between statutes, where the claim that the accused would have benefited from the earlier statute is purely speculative. This contention lacks merit. Gonzalez was an appeal from a dismissal of a post-conviction petition. Moreover, confronted with the question of whether a constitutional violation existed, the supreme court in Gonzalez stated that the matter of the election did not reach constitutional dimension. And, as in Deckard, the defendant in Gonzalez entered a negotiated plea to the offense.
The State also asks that this court withdraw its remandment of the cause and direct defendant to here make an election between the two provisions, a course of action which might obviate the need for remandment. However, for practical reasons, this court is not the proper tribunal in which such election should be made. The trial court is better suited to handle such matters.
Finally, the State asks that this court grant the petition for rehearing to clarify its position vis-a-vis the Deckard case. Deckard, noted above, is distinguishable on the ground that in that case, a negotiated plea was entered which, as Gonzalez noted, constituted “an agreed resolution” of the case. The instant holding is not at odds with Deckard.
We find no basis upon which to alter our original disposition of this matter. For these reasons we deny the State’s petition for rehearing.
Petition for rehearing denied.
McNAMARA and JIGANTI, JJ., concur.