specially concurring:
I believe that the provisions of section 5 — 6—4(h) of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 6—4(h)) should only be construed prospectively.
The trial court erroneously applied this section in considering sentencing of defendant Peach.
Since the amendment with which we are concerned in this case increases the punishment for an offense as compared with the existing provision, that amendment would be unconstitutional for such reason. (People v. Taylor (1974), 21 Ill. App. 3d 702, 315 N.E.2d 914; People v. McKinney (1968), 40 Ill. 2d 372, 240 N.E.2d 577.) Laws which increase the punishment for acts already committed, when such laws are enacted following the commission of the act, are deemed to be ex post facto and void (People ex rel. Dyer v. Walsh (1931), 346 Ill. 52, 178 N.E. 343).
In the case which we have under consideration, defendant Peach was sentenced in May of 1972. At that time, there was no provision that probation must be credited as against sentence and, as a matter of fact, it was not until January 1, 1973, that such probation credit was expressly provided to be given by statute and such provision was not amended until July 1,1974, at the time the court was given discretion to deny such credit, in the amendment which we are now considering.
I believe that the. amendment which was enacted effective July 1,1974, should be construed as having prospective application only and to apply only to crimes committed after July 1,1974, the effective date of the Act. We should, in our construction, conclude that the legislature did not intend to enact an ex post facto law and, therefore, that the discretionary right to deny probation credit which was vested in the trial court was intended to be applicable only after July 1, 1974. If we adopt such construction we avoid a determination of unconstitutionality. The consequence would be that the court could not apply the discretionary power to deny the credit as against time served.
The trial court was under the misapprehension that the amendment was in force and could be applied by the court retroactively. The amendment was, therefore, improperly applied and the sentence should be reversed and the cause remanded for resentencing in accordance with such views.