concurring in part and dissenting in part:
The defendant, Sharon Streit, was charged with two counts of State benefits fraud (Ill. Rev. Stat. 1987, ch. 38, par. 17 — 6). The prosecution alleged that defendant received public aid based on her unemployed status while she was, in fact, employed. The alleged incidents occurred between August 1982 and May 1988. Defendant pleaded guilty to both counts in exchange for the State’s agreement to recommend a sentence of no more than three years. At the sentencing hearing the State recommended a term of 30 months’ probation, six months’ home detention, and restitution. The trial court sentenced defendant to concurrent terms of two years’ imprisonment, the minimum sentence allowed by statute for a Class 3 felony conviction. Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—l(aX6).
The issues on appeal are whether defendant’s conviction on count I must be reversed because it was based upon conduct that occurred prior to the effective date of the statute, and whether the trial court abused its discretion in sentencing her to concurrent terms of two years’ imprisonment. The majority concludes that any defect in count I was merely formal, and the conviction stands. The majority reverses and remands, however, based on its conclusion that the trial court abused its discretion in sentencing defendant. I respectfully disagree with that portion of the opinion.
Defendant admitted that over more than four years, August 1982 through September 1986, she received $19,199 in benefits to which she was not entitled. Defendant claimed she was unemployed in order to qualify for the benefits, but she actually held employment during that period. Defendant repeated this scenario between September 1987 and May 1988, collecting another $3,202 in excess benefits.
A trial court’s sentencing decision is entitled to great deference and will not be altered on review unless it represents an abuse of discretion. (People v. Perruquet (1977), 68 Ill. 2d 149.) The record establishes that the court carefully examined the evidence before it when imposing the sentence. The court was offered evidence of mitigating and aggravating factors, and gave required consideration to defendant’s rehabilitative potential as well as the nature of the crime, protection of the public, deterrence and punishment. (People v. Darnell (1981), 94 Ill. App. 3d 830.) There is no indication that the trial court abused its discretion.
While it is a fact that the State recommended probation, it is imperative to remember that the comments of the State regarding sentencing are not decisions, but merely recommendations. The case at bar did not involve a negotiated sentence, but rather an open plea by defendant. A sentencing recommendation by the prosecution is not binding on the court. People v. Stidham (1989), 178 Ill. App. 3d 643.
The trial court did not exceed its discretionary powers in sentencing defendant to a term of imprisonment rather than probation. The trial court is in the best position to balance the appropriate factors and reach a determination of whether or not probation should be granted. (People ex rel. Ward v. Moran (1973), 54 Ill. 2d 552.) In the instant case, defendant committed two separate series of serious offenses. State benefits fraud is a costly crime to taxpayers, and the trial court recognized the need to acknowledge the seriousness of the offense and deter others from pursuing similar avenues. A term of imprisonment was deemed necessary to accomplish the trial court’s goals.
The Illinois Supreme Court has established that a reviewing court does not have authority to reduce a sentence of imprisonment to one of probation. (People v. Cox (1980), 82 Ill. 2d 268.) Since a two-year prison term is the minimum statutory sentencing, a reversal and remand is tantamount to reducing the sentence to probation. The decision of the majority amounts to a usurpation of the sentencing powers which have been specifically delegated to the trial court and denied to the appellate court. Such arrogation represents an evasion of judicial precedent and our own supreme court rule of law. I dissent.