If the conduct while on probation constitutes a separate offense, the defendant should be tried and found guilty, and the sentence should conform to "orderly criminal processes." People v. Koppen, 29 Ill. App. 3d 29, 32 (1975). In general, "`a sentence within the statutory range for the original offense will not be set aside on review unless the reviewing court is strongly persuaded that the sentence imposed after revocation of probation was in fact imposed as a penalty for the conduct which was the basis of the revocation, and not for the original offense.'"

Defendant contends for the first time on appeal that his conviction for disorderly conduct (Ill. Rev. Stat. 1975, ch. 38, par. 26-1(a)(2)) under count I must be reversed because section 26-1(a)(2) was declared unconstitutional by our supreme court in People v. Klick (1977), 66 Ill.2d 269, 362 N.E.2d 329, subsequent to the defendant's conviction. The defense cites our decision in People v. Koppen (1975), 29 Ill. App.3d 29, 329 N.E.2d 421, and contends that this court may as a matter of fundamental justice, where the unconstitutionality has been first established, apply the ruling to subsequent cases on appeal, even though the unconstitutionality of this statute was not raised in the trial court. The State, on appeal, concurs with the defendant that his conviction for disorderly conduct under count I must be overturned based upon Koppen and the supreme court's holding in Klick that the above statute was overly broad in that it made a telephone call or calls with the intent to annoy criminal conduct in contravention of the protection of such conduct under the first and fourteenth amendments to the United States Constitution.

If the probation violations represent a separate offense, "the defendant should be tried and found guilty, and the sentence should conform to 'orderly criminal processes.'" Varghese, 391 Ill.App.3d at 876 (quoting People v. Koppen, 29 Ill.App.3d 29, 32 (1975)). On review, the record must demonstrate that the circuit court considered the original offense. Varghese, 391 Ill.App.3d at 876; People v. Hess, 241 Ill.App.3d 276, 284 (1993).

People v. Varghese, 391 Ill.App.3d 866, 876 (2009). "If the conduct while on probation constitutes a separate offense, the defendant should be tried and found guilty, and the sentence should conform to 'orderly criminal processes.'" Id. (quoting People v. Koppen, 29 Ill.App.3d 29, 32 (1975)). ¶ 31 In addition to the foregoing, we note that with regard to the specific issue of the proper consideration of factors in mitigation, this court previously has held that when it is clear from the record that the statutory factors in mitigation exist that (1) the defendant's actions related to the offense or offenses for which the defendant is being sentenced did not threaten or cause any serious physical harm to another person and (2) the defendant did not contemplate that the defendant's actions would threaten or cause any serious physical harm to another person, a sentencing judge errs if the judge finds no applicable factors in mitigation.

"If the conduct while on probation constitutes a separate offense, the defendant should be tried and found guilty, and the sentence should conform to " 'orderly criminal processes.' " Id. (quoting People v. Koppen, 29 Ill. App. 3d 29, 32 (1975). Generally, a sentence within that statutory range for the original offense will not be set aside unless the reviewing court is " 'strongly persuaded that the sentence following a revocation of probation was in fact imposed as a penalty for the conduct which was the basis of the revocation, and not for the original offense.' "

It is well settled that the question of the constitutionality of the statute is properly preserved for review only when it has been raised and passed upon by the trial court ( People v. Myers (1981), 85 Ill.2d 281; People v. Amerman (1971), 50 Ill.2d 196; People v. Coleman (1983), 120 Ill. App.3d 851), and the issue may not be raised for the first time on appeal ( People v. Shaw (1975), 31 Ill. App.3d 555). It is only where the unconstitutionality of the statute has first been established that it becomes a matter of fundamental justice to apply the ruling to subsequent cases on appeal even though the issue was not raised in the trial court. People v. Gully (1986), 151 Ill. App.3d 795, 798; People v. Koppen (1975), 29 Ill. App.3d 29. IMPROPERLY IMPOSED AND EXCESSIVE SENTENCE

We need not address defendant's contentions in this instance. Defendant did not raise the issue of the constitutionality of the criminal-sexual-assault statute before the trial court and therefore has waived the issue for purposes of appeal. See, e.g., People v. Coleman (1983), 120 Ill. App.3d 851, 853, 459 N.E.2d 5, 6; People v. Koppen (1975), 29 Ill. App.3d 29, 31-32, 329 N.E.2d 421, 423. See also People v. Myers (1981), 85 Ill.2d 281, 290-91, 426 N.E.2d 535, 539.

) Further, where a defendant's probation is revoked, the court is to sentence the defendant for the original offense and not for the conduct which constituted the violation of probation. ( People v. Brogan (1979), 76 Ill. App.3d 957, 395 N.E.2d 408; People v. Koppen (1975), 29 Ill. App.3d 29, 329 N.E.2d 421.) Although the defendant's conduct on probation may be considered in assessing his or her rehabilitation potential ( People v. Brogan (1979), 76 Ill. App.3d 957, 395 N.E.2d 408), it is erroneous for the court to commingle consideration of the circumstances of the underlying offense with the events leading to the revocation itself.

A crime alleged in a petition to revoke probation is a separate offense for which the defendant may not be sentenced until he has been charged, tried, and convicted in the manner set forth by law. People v. Koppen (1975), 29 Ill. App.3d 29, 329 N.E.2d 421, 424; People v. White (1968), 93 Ill. App.2d 283, 288, 235 N.E.2d 393, 396. In the instant case, the trial court required defendant to make restitution for losses arising out of the offense alleged in the petition to revoke probation. Under sections 5-6-3(b) and 5-6-4 of the Code (Ill. Rev. Stat. 1975, ch. 38, pars. 1005-6-3(b), 1005-6-4), the trial court had no statutory authority to impose such a sentence upon modification of the original sentence of probation.

A dissent in that opinion took the alternative positions that the record showed that the issue had been raised in the trial court, or that there was a jurisdictional issue as to whether the statute charged an offense. The rule of Amerman was restated in People v. Pickett (1973), 54 Ill.2d 280, 296 N.E.2d 856. The rule has been followed in the several appellate courts in People v. Koppen (1975), 29 Ill. App.3d 29, 329 N.E.2d 421 (aggravated incest); People v. Hamil (1974), 20 Ill. App.3d 901, 314 N.E.2d 251 (sexually dangerous persons); People v. Stolfo (1977), 46 Ill. App.3d 616, 361 N.E.2d 101 (cruel and unusual punishment), and People v. DuMontelle (1977), 49 Ill. App.3d 187, 364 N.E.2d 95 (assessing costs against defendant). The record and report of proceedings here discloses no suggestion of a constitutional issue raised in the trial court, and the motion for reconsideration by the minor does not undertake to present the issue.