concurring and dissenting.
I concur in the portion of the opinion affirming the conviction. I dissent from the remand for resentencing.
There were two bases for the court’s refusal to grant probation: (1) That there was no chance for rehabilitation because the defendant would not change his mind and seek induction into military service. The Selective Service regulations provide that even after sentence and the beginning of the service of a term for draft evasion, the prisoner may apply for parole and induction into military service. The Attorney General may grant the parole and the individual may be inducted. §§ 1643.1-1643.13.
(2) That the court could not compel him to do civilian work as a condition of probation. They were alternate reasons for the court’s refusal to grant probation.
The court clearly showed that it exercised its discretion as to the first ground, and even if the court was in error as to the second ground and did not exercise its discretion, no error occurred since the grounds were alternative.
Accordingly, I would not remand for resentencing but affirm the judgment.