It follows that the 10-day imprisonment condition of the probation order must be vacated. ( People ex rel. Weaver v. Longo, 57 Ill.2d 67, 309 N.E.2d 581; People v. Grant, 57 Ill.2d 264, 312 N.E.2d 276; People v. Rhinehart, 11 Ill. App.3d 859, 296 N.E.2d 781.) Therefore, the probation order with the requirement that Husar be imprisoned for 10 days in the Chicago House of Correction is not now, for this case, a legally permissible sentence.

On the other hand, we should also point out that if defendant had been sentenced to 1 year of imprisonment we would have vacated this portion of the sentence under established authority. See People v. Licata, 15 Ill. App.3d 652, 655, 305 N.E.2d 6; People v. Claudio, 13 Ill. App.3d 537, 300 N.E.2d 791; People v. Davis, 12 Ill. App.3d 1014, 299 N.E.2d 342; People v. Adkisson, 12 Ill. App.3d 1015, 299 N.E.2d 145; and People v. Rhinehart, 11 Ill. App.3d 859, 296 N.E.2d 781. Accordingly, the judgment of conviction and imposition of probation for 5 years is affirmed.

People v. Williams, supra. • 3 Although not raised by the parties in their briefs, defendant's sentence of 90 days in the House of Correction as a condition of probation contravenes specific provisions of the new Unified Code of Corrections which prohibit imprisonment (except "periodic" imprisonment) as a condition of probation. (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1005-6-3(d); People v. Rhinehart, 11 Ill. App.3d 859, 296 N.E.2d 781.) The judgment of the Circuit Court of Cook County is therefore modified to eliminate the 90-day period of incarceration as a condition of probation and, as modified, is affirmed.

(Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1008-2-4; People v. Harvey, 53 Ill.2d 585, 294 N.E.2d 269.) It is our conclusion therefore that the condition of imprisonment as part of the sentence of probation is improper in the instant case. ( People v. Davis, 12 Ill. App.3d 1014, 299 N.E.2d 342; People v. Adkisson, 12 Ill. App.3d 1015, 299 N.E.2d 145; People v. Rhinehart, 11 Ill. App.3d 859, 296 N.E.2d 781.) The sentence is accordingly modified to probation only for a period of five years.

( People v. Harvey (1973), 53 Ill.2d 585, 294 N.E.2d 269.) Defendant is further correct in stating that incarceration may not presently be imposed as a condition of his probation except sentences of periodic imprisonment as set forth in Article 7 of the Unified Code of Corrections. (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1005-7-1, et seq.) People v. Rhinehart (1973), 11 Ill. App.3d 859, 296 N.E.2d 781; People v. Davis (1973), 12 Ill. App.3d 1014, 299 N.E.2d 342. In the instant case the defendant was granted probation for a period of five years, the first year to be served in the State Prison Farm at Vandalia.

• 1 At the time of sentencing of defendant on Oct. 26, 1972 it was permissible to imprison a defendant as a part of the condition of the sentence of probation imposed by a court. Under the new Unified Code of Corrections, effective Jan. 1, 1973, a court may not require as a condition of probation that the defendant be committed to a period of imprisonment unless the imprisonment is "periodic" (Ill. Rev. Stat. 1971, ch. 38, sec. 1005-6-3(b)(1) * * * (d). The exact issue was previously decided by this court in People v. Rhinehart (1973), 11 Ill. App.3d 859, where we found in the provision with respect to elimination of imprisonment as a condition of probation, "a substantial and mitigating basic public policy" and that rehabilitation of defendant" calls for application of the spirit of the change and modification as expressed in the Unified Code of Corrections to eliminate the imposition of incarceration as to defendant in this cause". • 2 We find that it is proper that the judgment be modified to eliminate the 60 day period of incarceration so as to constitute a sentence solely of probation for a period of two years.

On appeal in this court defendant requests that this court modify the sentence by eliminating the jail sentence as a part of the probation sentence. • 1 In accord with People v. Rhinehart (1973), 11 Ill. App.3d 859, and People v. Adkisson, post, p. 1015, applying the new Corrections Act (Ill. Rev. Stat. 1971, ch. 38, sec. 1005-6-3(b)(1) * * * (d)), it is our conclusion the jail sentence prescribed as a condition of probation is inappropriate. • 2 We find that it is proper that the judgment be modified to eliminate the 60 day period of incarceration so as to constitute a sentence solely of probation for a period of two years.

• 8 We do, however, find that the sentence was excessive and it clearly appears that the sentence constitutes a great departure from the fundamental law and its spirit and purpose. "The courts of this state have sought to adopt sentences in which a final adjudication has not been made to the general public policy expressed in amended or later applicable statutes where the ends of justice will be best subserved thereby". People v. Rhinehart (1973), 11 Ill. App.3d 859. Under the new Unified Code of Corrections in a Class 3 felony the judge may not set a minimum sentence which is in excess of one-third of the maximum sentence actually imposed in that case. Accordingly the minimum sentence is modified and reduced to 3 years, 4 months, and the maximum sentence is to remain at 10 years.