DocketNumber： Nos. 2 CA-CR 838, 2 CA-CR 839-2
Judges： Hathaway, Howard, Krucker
Filed Date： 9/16/1976
Status： Precedential
Modified Date： 11/2/2024
OPINION
Appellant pled guilty to one count of second degree attempted burglary in Cause No. A-28076 and one count of robbery in Cause No. A-28392. He was sentenced to serve five years’ probation on the robbery conviction and as a specific condition of
Based on the recent case of State v. Pakula, 113 Ariz. 122, 547 P.2d 476 (1976), appellant questions the legality of the sentence contending that the trial court does not have authority to impose consecutive conditions of probation. The state contends that under the Arizona cases the incarceration of the defendant pursuant to the condition of probation is a sentence of imprisonment and therefore Rule 26.13, Rules of Criminal Procedure applies. Whether the offenses are charged in the same information or are in two separate informations is not relevant to the disposition of this case and was not relevant to the disposition in State v. Pakula, supra, and was not meant by the Supreme Court to be a distinction.
Rule 26.13, Rules of Criminal Procedure, states:
“Separate sentences of imprisonment imposed on a defendant for 2 or more offenses, whether they are charged in the same indictment or information, shall run concurrently unless the judge expressly directs otherwise.” (Emphasis added)
The court in State v. Pakula, supra, first looked at this rule and concluded that it provided no authority for consecutive probationary terms. It was clear that it did not. The court then looked at A.R.S. Sec. 13-1657 and found that it also did not provide the necessary authority. It was for these reasons that the court struck down the sentence. Had Pakula been charged in more than one information the result would have been the same since there was no authority, statutory or otherwise, for the trial court’s sentence.
In the case at bench we must look again to the rules and statutes to determine the legality of the sentence. The State relies on Rule 26.13, supra, reasoning that since State v. Evans, 109 Ariz. 491, 512 P.2d 1225 (1973), states that incarceration in the county jail is a sentence of imprisonment the foregoing rule should apply. We do not agree. In the context of the issues in State v. Evans, supra, the statement has efficacy, but not vis-a-vis the question posed here.
Rule 26.13, Rules of Criminal Procedure applies only when the defendant is sentenced to a term of imprisonment and not to the situation where he is placed on probation with incarceration in the county jail as a condition of probation. In the latter situation the legislature has spoken by the enactment of A.R.S. Sec. 13-1657(A)(1). It deals with the power of the court upon the suspension of imposition of sentence, a matter in which the court has no inherent power, State v. Bigelow, 76 Ariz. 13, 258 P.2d 409 (1953), and contains no provision for consecutive sentences in the county jail as a condition of probation. Therefore imposition of consecutive conditions of probation was not authorized. Additionally the court’s mandate as to “flat” time was erroneous because A.R.S. Sec. 13 — 1657(A) (1) confers no authority to impose such a restriction when a jail sentence as a condition of probation is imposed.
The sentences are therefore modified as follows. In Cause No. A-28392, as a condition of probation, appellant shall serve one year in the Pima County Jail and in Cause No. A-28076, as a condition of probation, appellant shall serve one year in the Pima County Jail, to run concurrent with the jail time in Cause No. A-28392. The provision requiring service of “flat” time of two years is ordered stricken.
As modified, the sentences are affirmed.