v. People , 2019 CO 78 ( 2019 )

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ADVANCE SHEET HEADNOTE
September 23, 2019
2019 CO 78
No. 17SC659, Allman v. People—Identity Theft—Continuing Offense—
Forgery—Concurrent Sentences—Multiple Counts—Sentencing.
In this case, we first conclude that the crime of identity theft is not a
continuing offense. As a result, the trial court did not abuse its discretion in
sentencing Allman separately on the eight counts of identity theft. Next, we
conclude that none of Allman’s convictions for identity theft or forgery were based
on identical evidence, so the trial court did not abuse its discretion in sentencing
Allman to consecutive sentences on those counts. Finally, we hold that when a
court sentences a defendant for multiple offenses in the same case, it may not
impose imprisonment for certain offenses and probation for others.
Accordingly, we affirm the judgment of the court of appeals in part, reverse
in part, and remand with instructions to return the case to the trial court for
resentencing consistent with this opinion.
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2019 CO 78
Supreme Court Case No. 17SC659
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 15CA1235
Petitioner:
Frederick Leroy Allman,
v.
Respondent:
The People of the State of Colorado.
Judgment Affirmed in Part and Reversed in Part
en banc
September 23, 2019
Attorneys for Petitioner:
Law Office of Suzan Trinh Almony
Suzan Trinh Almony
Broomfield, Colorado
Attorneys for Respondent:
Philip J. Weiser, Attorney General
Kevin E. McReynolds, Assistant Attorney General
Denver, Colorado
JUSTICE BOATRIGHT delivered the Opinion of the Court.
¶1 Frederick Leroy Allman was convicted of seven counts of identity theft, two
counts of forgery, and one count each of attempted identity theft, aggravated
motor vehicle theft, and theft from an at-risk elder.1 He was sentenced to a total
of fifteen years in the Department of Corrections (“DOC”), followed by a five-year
period of parole. Then, on one of the forgery counts, he was sentenced to ten years
of probation to be served consecutively to his DOC sentence, but concurrently with
his mandatory parole. Allman appealed his convictions for identity theft 2 and
raised several issues regarding his sentencing. The court of appeals affirmed the
judgment and sentence, and Allman petitioned this court for review.
¶2 In his petition, Allman contends as follows: (1) identity theft is a continuing
offense; (2) because identity theft is a continuing offense, his convictions for the
eight identity theft counts should have merged at sentencing; (3) some of his
convictions were based on identical evidence and thus require concurrent
sentences; and (4) the court could not legally sentence him to both imprisonment
and probation for different counts in the same case.3
1 “‘At-risk elder’ means any person who is seventy years of age or older.”
§ 18-6.5-102(3), C.R.S. (2019).
2We combine the seven convictions for identity theft with the one conviction for
attempted identity theft—and refer to them in total as eight identity theft
convictions—for ease of reference because it does not change our analysis.
3 We granted certiorari to review the following issues:
2
¶3 We first hold that the crime of identity theft under section 18-5-902(1)(a),
C.R.S. (2019), is not a continuing offense. We therefore conclude that the trial court
did not abuse its discretion in sentencing Allman separately on the eight counts of
identity theft. Next, we determine that none of the evidence supporting the
identity theft counts and the forgery counts is identical; hence, it was within the
trial court’s discretion whether to sentence Allman to consecutive sentences on
those counts. Finally, we hold that when a court sentences a defendant for
multiple offenses in the same case, it may not impose imprisonment for certain
offenses and probation for others.4 Thus, we affirm the judgment of the court of
1. Whether the court of appeals erroneously ruled, as a matter of first
impression, that pursuant to section 18-5-902(1)(a), C.R.S. (2013),
the crime of identity theft is not a continuing offense, in violation
of the petitioner’s constitutional right against double jeopardy.
2. Whether the trial court abused its discretion in sentencing the
petitioner to eight separate counts of identity theft.
3. Whether the district court erroneously exceeded its authority
and/or abused its discretion in sentencing the petitioner to
incarceration for one count of forgery and probation for the second
count of forgery, to be served consecutively.
4. Whether the district court erroneously exceeded its authority
and/or abused its discretion in sentencing the petitioner to
multiple counts of identity theft and forgery based on identical
evidence.
4This appeal does not present, nor do we reach, the question of whether a court
may impose sentences to both imprisonment and probation in separate cases.
3
appeals in part, reverse in part, and remand with instructions to return the case to
the trial court for resentencing consistent with this opinion.
I. Facts and Procedural History
¶4 Allman met L.S., a seventy-five-year-old man, through a meet-up group for
older people; Allman introduced himself as John Taylor. Some time after meeting
L.S., Allman claimed to be having difficulties with his living situation and asked
L.S. for a place to stay. L.S. agreed. After Allman had lived with L.S. for five
months, L.S. left for a three-week vacation.
¶5 While L.S. was away, Allman used L.S.’s financial information to repeatedly
transfer funds out of L.S.’s bank account. Allman also used L.S.’s personal
identifying information to open three credit cards and three separate lines of
credit. Allman attempted to open a fourth credit card, but the issuing bank denied
the application. After making multiple purchases with the credit cards totaling
over $45,000, Allman moved out of L.S.’s home, taking a car owned by L.S.
¶6 Allman was charged with multiple crimes arising out of his conduct, and a
jury found him guilty of all charges. At sentencing, the trial court imposed
consecutive sentences to the DOC for three counts of identity theft (two years
each), one count of theft from an at-risk elder (seven years), and one count of
aggravated motor vehicle theft (two years), totaling fifteen years in custody of the
4
DOC. The seven-year sentence imposed for theft from an at-risk elder included
the maximum period of mandatory parole (five years). The court then imposed
two-year sentences for each of the four remaining counts of identity theft and one
count of forgery, as well as a one-year sentence for attempted identity theft; these
sentences ran concurrently with the combined fifteen-year sentence imposed on
the other counts. Finally, the court sentenced Allman to ten years of probation for
the second forgery count, to run consecutively to Allman’s DOC sentences, but
concurrently with Allman’s period of parole. The court set restitution in the
amount of $59,758.95 as an express condition of Allman’s probation.
¶7 Allman appealed, contending, as he does here, that identity theft is a
continuing offense; that many of his convictions were based on identical evidence
and require concurrent sentences; and that he could not be sentenced to
incarceration and probation for different counts in the same case. The court of
appeals rejected all of Allman’s claims and affirmed his sentences. We granted
certiorari and now affirm in part, reverse in part, and remand with instructions to
return the case to the trial court for resentencing.
II. Analysis
¶8 We first determine whether the crime of identity theft, as laid out in section
18-5-902(1)(a), is a continuing offense. We hold that it is not. Next, we address
5
Allman’s contentions that his convictions for identity theft, as well as his
convictions for forgery and one of his identity theft convictions, should have
merged and that his sentences were required to run concurrently. Because identity
theft is not a continuing offense, we conclude that the trial court did not abuse its
discretion in refusing to merge Allman’s convictions for identity theft, and because
the relevant identity theft and forgery convictions are not based on identical
evidence, we conclude that they did not require concurrent sentences. Finally,
we hold that when a court sentences a defendant for multiple offenses in the same
case, it may not impose imprisonment for certain offenses and probation for
others.
A. Identity Theft Is Not a Continuing Offense
¶9 Allman contends that identity theft is a continuing offense, meaning that his
eight separate identity theft charges were actually part of a continuous transaction
and are therefore one crime. As such, Allman contends that the identity theft
charges should have been merged at sentencing to avoid violating his protection
against double jeopardy.
¶10 Determining whether an offense is continuing is a matter of statutory
interpretation, which we review de novo. See People v. Perez, 2016 CO 12, ¶ 8, 367
P.3d 695, 697.
6
¶11 “The Double Jeopardy Clauses of the United States and Colorado
Constitutions protect an accused from being placed in jeopardy twice for the same
offense,” People v. Williams, 651 P.2d 899, 902 (Colo. 1982); this includes protection
against receiving multiple punishments for the same offense, id. (citing Brown v.
Ohio, 432 U.S. 161, 165–66 (1977)). When the legislature creates an offense, that
offense is deemed committed once all the substantive elements set forth by the
legislature are satisfied. See People v. Thoro Prods. Co., 70 P.3d 1188, 1192 (Colo.
2003). “However, in certain circumstances, a crime continues beyond the first
moment when all its substantive elements are satisfied,” and it is deemed a
continuing offense. Id. If a “series of repeated acts . . . are charged as separate
crimes even though they are part of a continuous transaction and therefore
actually one crime,” Woellhaf v. People, 105 P.3d 209, 214 (Colo. 2005), those
convictions must be merged at sentencing to avoid violating the U.S. and Colorado
Constitutions’ Double Jeopardy Clauses. Thus, to determine whether a
defendant’s protection against double jeopardy has been violated “[i]n these
situations, the inquiry is whether the [legislature] has defined the crime as a
continuous course of conduct.” Id. at 214–15.
¶12 A crime is deemed continuous when “the explicit language of the
substantive criminal statute compels such a conclusion.” Toussie v. United States,
7
397 U.S. 112, 115 (1970). For example, when defining conspiracy, the legislature
explicitly stated that “[c]onspiracy is a continuing course of conduct.”
§ 18-2-204(1), C.R.S. (2019). If the explicit language of the statute does not compel
such a conclusion, a crime is deemed continuous if “the nature of the crime
involved is such that [the legislature] must assuredly have intended that it be
treated as a continuing one.” Toussie, 397 U.S. at 115. In this analysis, we construe
the statute to give effect to the legislature’s intent.
¶13 When construing a statute to give effect to the legislature’s intent, we first
look to the statute’s text and “apply the plain and ordinary meaning of the
provision.” Perfect Place, LLC v. Semler, 2018 CO 74, ¶ 40, 426 P.3d 325, 332. In
doing so, we consider “the statute as a whole, construing each provision
consistently and in harmony with the overall statutory design.” Whitaker v. People,
48 P.3d 555, 558 (Colo. 2002).
¶14 The statute at issue here is section 18-5-902(1)(a). It prohibits a person from
knowingly using another’s personal or financial information, without permission,
and with the intent to obtain something of value:
A person commits identity theft if he or she . . . [k]nowingly uses the
personal identifying information, financial identifying information,
or financial device of another without permission or lawful authority
8
with the intent to obtain cash, credit, property, services, or any other
thing of value or to make a financial payment . . . . 5
§ 18-5-902(1)(a). Unlike statutes that explicitly define the crime as “a continuing
course of conduct,” the identity theft statute contains no language that explicitly
defines identity theft as a continuing offense. Thus, we must look to the alternative
test to determine whether, based on the nature of the crime, the legislature
nevertheless assuredly intended that identity theft be treated as a continuing
offense. See Toussie, 397 U.S. at 115.
¶15 To make this determination, we first look to the plain language of the
statute. Under section 18-5-902(1)(a), a person commits identity theft when he
“[k]nowingly uses the personal identifying information, financial identifying
information, or financial device of another without permission,” with the intent to
gain something of value. Thus, the thrust of the question before us is whether the
verb “uses” connotes a discrete act or a continuous act. Because the statute does
not specifically define the word “uses,” we look to the plain and ordinary meaning
of the word, aided by the dictionary definition. See People v. Forgey, 770 P.2d 781,
5This is a different and distinct offense from identity theft by possession, which is
defined in a separate subsection of the statute, § 18-5-902(1)(b), and requires
possession of another’s identifying information with the intent to use it.
9
783 (Colo. 1989) (“We have frequently looked to the dictionary for assistance in
determining the plain and ordinary meaning of words.”).
¶16 We first turn to the plain and ordinary meaning of the word “use.” Webster’s
Third New International Dictionary defines “use” as “to put into action or service.”
Use, Webster’s Third New International Dictionary (2002). Webster’s goes on to
state that “use is general and indicates any putting to service of a thing, usu[ally]
for an intended or fit purpose.” Id. Black’s Law Dictionary similarly defines “use”
as “to employ for the accomplishment of a purpose; to avail oneself of.” Use,
Black’s Law Dictionary (11th ed. 2019). Therefore, the word “uses” has two
definitional components: (1) putting something into action or service (2) to achieve
a purpose.
¶17 Allman asserts that the object of the verb “uses” is the victim’s identity itself,
meaning that a person’s “use” of another’s identity is necessarily continuing
because a person’s identity can only be stolen once. We are not persuaded. While
the title of the statute, “Identity theft,” suggests that the crime it defines is the theft
of a person’s identity, a closer reading of the statute reveals otherwise. As the
court of appeals correctly noted, the object of the verb “uses” is “the personal
identifying information, financial identifying information, or financial device of
another.” § 18-5-902(1)(a); People v. Allman, 2017 COA 108, ¶ 17, __ P.3d __. Each
10
of these is a piece of information that can authenticate one’s identity; none of them
is one’s identity itself, as Allman argues. Thus, the crime of identity theft is not
stealing another’s identity; rather, it is stealing something else of value through the
impermissible use of another’s identifying information.
¶18 A person, therefore, “uses” another’s identifying information whenever he
puts that information into service to achieve a purpose, namely, “to obtain cash,
credit, property, services, or any other thing of value or to make a financial
payment.” § 18-5-902(1)(a). Accordingly, each act of putting another’s
information into service for varying purposes constitutes a separate, discrete act.
This conclusion is supported by the fact that each time an identity thief uses
another’s information, a new harm occurs. Here, for example, Allman used L.S.’s
identity to open multiple extensions of credit. Each extension of credit harmed not
only L.S. but also the financial institution issuing the extension of credit.
¶19 Moreover, looking at the identity theft statute as a whole supports this
conclusion. See Whitaker, 48 P.3d at 558 (“We must read the statute as a whole,
construing each provision consistently and in harmony with the overall statutory
design, if possible.”). Identity theft by use is at issue here, but the statute also
provides for identity theft by possession. Identity theft by possession, as defined
in section 18-5-902(1)(b), is defined similarly to identity theft by use, as defined in
11
section 18-5-902(1)(a), except that it requires only the possession of another’s
identifying or financial information with the intent to use, rather than the actual
use of that information.6 Id. Crimes of possession are generally thought to be
continuing offenses. People v. Zuniga, 80 P.3d 965, 969 (Colo. App. 2003). This
makes sense because there is not an inherently logical way to measure possession
in units—whereas “use” is a discrete act that logically creates a unit of
measurement, possession is a continuous act. Consistent with that logic, the
legislature created one continuing class 4 felony for the possession of another’s
identifying information and separate, discrete class 4 felonies for each time that
information is used. Thus, the legislature did not assuredly intend for identity
theft by use to be a continuing offense. See Toussie, 397 U.S. at 115.
¶20 Accordingly, we hold that identity theft by use under section 18-5-902(1)(a)
is not a continuing offense. Further, because we have concluded that identity theft
is not a continuing offense, the trial court was not required to merge Allman’s
6 Section 18-5-902(1)(b) states that a person commits identity theft when he or she:
[k]nowingly possesses the personal identifying information, financial
identifying information, or financial device of another without
permission or lawful authority, with the intent to use or to aid or
permit some other person to use such information or device to obtain
cash, credit, property, services, or any other thing of value or to make
a financial payment.
12
identity theft convictions. Therefore, the trial court did not abuse its discretion in
sentencing Allman separately for each count of identity theft.
B. Concurrent Sentencing Was Not Required
¶21 Allman contends that his sentences for his eight separate identity theft
convictions are required to run concurrently because they are based on identical
evidence and thus violate his right against double jeopardy.
¶22 The sentencing court generally has broad discretion when imposing
sentences, and “[w]hen a defendant is convicted of multiple offenses, the
sentencing court has the discretion to impose either concurrent or consecutive
sentences.” Juhl v. People, 172 P.3d 896, 899 (Colo. 2007); see also Misenhelter v.
People, 234 P.3d 657, 660 (Colo. 2010). But when those multiple convictions are
based on identical evidence, the court must impose concurrent sentences.
§ 18-1-408(2)–(3), C.R.S. (2019) (requiring concurrent sentences for offenses “based
on the same act or series of acts arising from the same criminal episode” that “are
supported by identical evidence”).
¶23 In construing section 18-1-408(3), “we have consistently analyzed ‘identical
evidence’ by considering whether the acts underlying the convictions were
sufficiently separate.” Juhl, 172 P.3d at 902. “[W]hether the evidence supporting
the offenses is identical turns on whether the charges result from the same act, so
13
that the evidence of the act is identical, or from two or more acts fairly considered
to be separate acts, so that the evidence is different.” Id.
¶24 As stated above, each count of identity theft was based on a separate,
discrete act of identity theft; specifically, each count was based on Allman’s use of
L.S.’s information to open a different credit card or line of credit. 7 The evidence
supporting each of these counts necessarily differs based on the various cards and
accounts that Allman opened, used, or attempted to use or open:
• Count 2: transferred funds out of L.S.’s Wells Fargo bank account
• Count 4: opened a new Citibank Visa credit card
• Count 5: opened a new Citibank dividend platinum line of credit
• Count 6: opened a Bill Me Later line of credit
• Count 7: opened a First National Bank line of credit
• Count 8: opened an American Express Business Gold credit card
• Count 9: attempted to open a Bank of America Business credit card
• Count 10: opened an American Express credit card
¶25 In sum, each of these counts is supported by evidence unique to the specific
credit card or line of credit that was opened. Therefore, Allman’s eight identity
theft convictions are not supported by identical evidence.
7 Allman ultimately succeeded in opening three credit cards and three lines of
credit; his final attempt to open a credit card was denied by the issuing bank.
14
¶26 Allman similarly argues that his sentences for forgery should run
concurrently with each other and with his sentence for one of the identity theft
convictions because they are based on his use of a single Citibank card, which he
obtained by an act of identity theft. But that position also ignores the fact that the
evidence supporting his forgery convictions was not identical. The first forgery
count stemmed from Allman’s use of the Citibank card at a liquor store, while the
second forgery count stemmed from Allman’s use of the Citibank card at a Target.
Proving those two counts required receipts signed by Allman from each business.
As a result, the two forgery counts were not based on identical evidence.
¶27 Moreover, the evidence supporting the forgery convictions was not
identical to the evidence supporting the identity theft conviction related to the
Citibank card. Unlike the identity theft statute, the forgery statute requires a
person to falsely make, complete, alter, or utter a written instrument that
evidences a legal right, i.e., falsely signing a credit card slip. Compare
§ 18-5-102(1)(c), C.R.S. (2019), with § 18-5-902(1)(a). In simple terms, Allman
committed identity theft when he used L.S.’s identity to obtain the Citibank card.
He committed forgery each time he signed L.S.’s name on each credit card receipt.
Those are all different acts. Therefore, they are not supported by identical
evidence. As a result, the trial court was not statutorily required to run Allman’s
15
sentences for the forgery convictions and the identity theft conviction related to
the Citibank card concurrently and did not abuse its discretion in declining to do
so.
C. Imprisonment and Probation
¶28 The final issue Allman raises is whether a court can sentence a defendant to
both imprisonment and probation in a multi-count case. The court’s power to
sentence, both to prison and probation, derives entirely from statute. The
legislature establishes the range of prison sentences and the circumstances where
probation is authorized, including the length of any incarceration as a condition
of probation. Because the probation statute does not grant the courts the power to
impose sentences to both imprisonment and probation in a multi-count case, we
hold that when a court sentences a defendant for multiple offenses in the same
case, it may not impose imprisonment for some offenses and probation for others.
1. Standard of Review
¶29 Whether a trial court has the authority to impose a specific sentence is a
question of statutory interpretation, which we review de novo. Hunsaker v. People,
2015 CO 46, ¶ 11, 351 P.3d 388, 391.
2. Law and Application
¶30 Prescribing punishments is the prerogative of the legislature. Vensor v.
People, 151 P.3d 1274, 1275 (Colo. 2007). “Courts therefore exercise discretion in
16
sentencing only to the extent permitted by statute.” Id. Without statutory
authority to impose probation, the court has no inherent powers to impose such a
sentence. Thus, the question is not whether the statute disallows imposing
sentences both to imprisonment and probation, but whether the statute allows it.
¶31 When undertaking statutory interpretation, “statutes should be construed
to effectuate the General Assembly’s intent and the beneficial purpose of the
legislative measure.” In re Estate of Royal, 826 P.2d 1236, 1238 (Colo. 1992). “Even
in the face of statutory silence, questions of interpretation are governed by
legislative intent.” LaFond v. Sweeney, 2015 CO 3, ¶ 12, 343 P.3d 939, 943. In those
situations, we determine the legislature’s intent by looking to, among other things,
the plain language of the statute as a whole and the practical consequences of a
particular interpretation. See § 2-4-203, C.R.S. (2019) (listing different aids to be
used in statutory construction).
¶32 The probation statute itself is silent as to the propriety of sentencing a
defendant to both imprisonment and probation in a multi-count case. Thus, we
must determine whether the legislature intended to allow such a sentence by
looking to the plain language of the probation scheme as a whole and the practical
consequences of imposing sentences to both imprisonment and probation. We
conclude that it did not.
17
¶33 First, the plain language of the probation statute leads us to conclude that a
court may not impose sentences to both imprisonment and probation for multiple
offenses in the same case. To start, the determination that probation is an
appropriate sentence for a defendant necessarily requires a concordant
determination that imprisonment is not appropriate. The court has discretion to
grant a defendant probation “unless, having regard to the nature and
circumstances of the offense and to the history and character of the defendant,” it
determines that “imprisonment is the more appropriate sentence for the protection
of the public.” § 18-1.3-203(1), C.R.S. (2019). The probation statute lists numerous
factors that, “while not controlling the discretion of the court, shall be accorded
weight” when determining whether probation is appropriate. § 18-1.3-203(2).
These factors are comprehensive. Some concentrate on the offense committed,
while others require the court to consider the character, history, situation, and
attitude of the defendant himself. Id.
¶34 The probation statute gives courts guidance and discretion in choosing to
grant probation. However, it requires a choice between prison and probation. The
court must look at both the defendant and the crimes committed and, using its
discretion and the statutory guidance, choose whether “the ends of justice and the
best interest of the public, as well as the defendant” will be best served by
18
probation, § 18-1.3-202(1)(a), C.R.S. (2019), or whether “imprisonment is the more
appropriate sentence for the protection of the public,” § 18-1.3-203(1). The
legislature intended to allow courts to choose only one or the other. Probation is
an alternative to prison.
¶35 The People assert that, in a situation where the court feels that it is in the
best interest of the public and of the defendant for the defendant to be incarcerated,
but the court wishes to give a longer period of rehabilitation than the prescribed
mandatory parole period, the court should have the option to impose a period of
post-incarceration probation longer than that of parole. There is logic in this
argument; in fact, it appears that the trial court here wanted Allman supervised
for a long period of time due to the restitution owed. Nevertheless, allowing a
trial court to in effect increase the time of post-incarceration supervision ignores
the fact that the legislature determined the proper length of time for a defendant’s
post-incarceration supervision when it crafted mandatory periods of parole. 8 It
did not leave that decision to the courts.
8 While we understand the court’s desire to have Allman supervised for an
extended period of time to ensure he pays his restitution, the sentencing statutes
simply do not provide for this. The legislature has already provided methods for
victims to receive their restitution. See, e.g., § 16-18.5-107, C.R.S. (2019) (providing
for victims to pursue collections for restitution payments).
19
¶36 The People further assert that because the probation statute is offense
specific, the parole period would apply to one offense and the probationary period
would apply to a separate offense, thus not violating the legislatively mandated
rehabilitation period. However, this argument disregards the structure of the
parole scheme as established by the legislature. As mandated by statute, when a
defendant is sentenced to imprisonment in a multi-count case, the period of parole
is tied to the most serious crime for which the defendant is sentenced. See
§ 18-1.3-401(1)(a)(V)(E), C.R.S. (2019). In other words, regardless of the number of
counts in a multi-count case, a defendant is only subject to one period of parole.
Thus, the legislature intended the rehabilitative period for a defendant to be case
specific, not offense specific.
¶37 To be sure, the legislature gives the court significant discretion to determine
the terms and conditions of probation. But that discretion has limits. Applicable
here, the legislature has determined the length of confinement that a court can
order as a condition of probation. Specifically, the court has the power to commit
a defendant to jail as a condition of probation, but the aggregate length of any
commitment may not exceed ninety days, or up to two years with work release.
See § 18-1.3-202(1); § 18-1.3-207(1), C.R.S. (2019). This is clear direction that the
legislature never intended for the court to have discretion to impose a period of
20
confinement longer than ninety days (or up to two years with work release) when
also sentencing a defendant to probation. If the court could impose a prison
sentence and then probation, then these limits on incarceration as a condition of
probation would be rendered meaningless in multi-count cases.
¶38 Furthermore, in the same section granting probationary powers to the court,
the legislature mandated that “[i]f the court chooses to grant the defendant
probation, the order placing the defendant on probation shall take effect upon
entry.” § 18-1.3-202(1)(a) (emphasis added). The legislature’s use of the
mandatory term “shall” means that it intended for a sentence to probation to begin
immediately; hence, the legislature did not intend for courts to enter an order
granting probation to run consecutively to a sentence of imprisonment. Thus, the
statutory scheme does not allow a court to impose sentences of imprisonment and
probation for different counts in the same case.
¶39 Second, the fact that the legislature did not intend to allow a court to
sentence a defendant to both probation and imprisonment is further evidenced by
the practical consequences of such sentencing. When a defendant is sentenced to
imprisonment and subsequently released on parole, that defendant is under the
supervision of the executive branch. However, when a defendant is sentenced to
probation, that defendant is under the supervision of the judicial branch. Thus, a
21
defendant who is serving both parole and probation would be under the
supervision of not just two different supervisors, but two entirely different
branches of government, possibly with competing terms and conditions for both.
The legislature could not have intended for defendants to be simultaneously
subject to two separate branches of government during their post-incarceration
supervision.
¶40 For the reasons listed above, we hold that when a court sentences a
defendant for multiple offenses in the same case, it may not impose imprisonment
for certain offenses and probation for others.9
III. Conclusion
¶41 We affirm the judgment in part, reverse in part, and remand with
instructions to return the case to the trial court for resentencing.
9Because we determine that the statutory scheme does not allow a court to impose
imprisonment for some counts and probation for others, we need not address
whether doing so raises separation of powers concerns or whether Allman
consented to his probationary sentence.
22