Colley

Ronald Walker Colley was sentenced to state prison after the probation previously granted him had been revoked. He appeals contending, in essence, that the trial court erred by fixing his sentence at the upper four-year term.

We set forth the procedural history of the case since it concededly played a role in the sentencing court’s decision. Appellant was originally convicted by plea of first degree burglary (Pen. Code, §§ 459, 460) on December 6, 1977. Proceedings were suspended and probation was granted upon certain terms and conditions including, inter alia, the service of one year in the county jail.

On January 5, 1978, he was found in violation of probation and sentenced to state prison for the middle three-year term. At that time, however, the court invoked the provisions of Penal Code section 1170, subdivision (d), and thereafter recalled this sentence, notwithstanding a report from the Department of Corrections that appellant was a potential recidivist. Once again proceedings were suspended and probation was granted.

The Department of Corrections’ prophetic report proved to be correct and appellant was subsequently convicted of petty theft resulting in the…