dissenting in part:
In my opinion the crime for which the defendant has been found guilty, namely, aggravated battery, open-end, is still susceptible to designation by the trial court as a misdemeanor, notwithstanding the five year term of probation. For this reason, I find no error in the sentence and would therefore affirm it.
The majority view in this case is based on two premises which appear to me to be incorrect. The first is that a grant of probation is a “sentence” and the second is that designation of an open-end offense as either a felony or a misdemeanor can take place only by the imposition of a “sentence”.
In my opinion, when sentence is suspended and probation is granted for an open-end offense, the trial court may allow the offense to remain open-ended during the term of probation and upon its successful completion then designate the crime as either a felony or misdemeanor and discharge the defendant from court supervision.
In analyzing this, the first question in a logical sequence is: when does the law provide that an open-end offense must be designated as either a felony or a misdemean- or? The majority opinion states that this must occur at the sentencing proceeding. However I can find no support for this. A.R.S. § 13-103(B), as amended, (Supp. 1973), relied upon so heavily by the majority merely instructs us that when a sentence is imposed, its effect is to designate the crime as either a misdemeanor or felony at that point. It is noteworthy that this statute has nothing to do with the situation where sentence is suspended and probation is granted.
The authority to suspend imposition of a sentence is found in A.R.S. § 13-1657, as amended, (Supp.1976). State v. Pakula, 113 Ariz. 122, 547 P.2d 476 (1976). When the trial court elects to grant probation, no sentence has yet been imposed and indeed it may never be if the defendant complies with the terms of probation. See State v. Jackson, 107 Ariz. 371, 489 P.2d 8 (1971); State v. Pitts, 26 Ariz.App. 390, 548 P.2d 1202 (1976). The length of the probationary term is also governed by A.R.S. § 13-1657, as amended, (Supp.1976). In the case of an open-end offense, the statute clearly allows the trial court to provide for a term of probation to the outer limits of the potential sentence for the crime, which in this case was five years. At this point the majority view is to equate the length of time for probation with a felony sentence of imprisonment. This seems to me an uncalled-for equation. A.R.S. § 13-1657, as amended, (Supp.1976) operates to do nothing more than fix a maximum period for which the defendant must remain under probation supervision. While the measure of this period is established by the potential felony imprisonment which could be imposed, it bears no closer relationship to an actual sentence. To say that the fixing of the probationary term designates the crime as a felony and at the same time eliminates the possibility of a future misdemeanor sentence and possible incarceration in the county jail as punishment goes beyond the words of A.R.S. § 13-1657, as amended, (Supp.1976). Such an argument engrafts consequences upon the use of A.R.S. § 13-1657, as amended, (Supp.1976) which appear to me are plainly not there.
This does not resolve, however, the question of when the designation of the offense actually occurs in such a situation, but that is easily stated. During the probationary *599period, the crime is deemed to be a felony as nothing has occurred to designate it otherwise. This would follow from State v. Raffaele, 113 Ariz. 259, 550 P.2d 1060 (1976) and State v. Vineyard, 96 Ariz. 76, 392 P.2d 30 (1964). If during the probation term, probation is revoked and the defendant is sentenced, then the sentence will determine whether the crime is a felony or a misdemeanor by reason of the provision of A.R.S. § 13-103(B), as amended, (Supp.1973). If the defendant successfully completes his probationary term, the court will, at the conclusion thereof, both discharge the defendant as is provided by A.R.S. § 13-1657(D), as amended, (Supp.1976) and Rule 27.4, Rules of Criminal Procedure, 17 A.R.S., and then and there designate the crime as either a felony or misdemeanor. The authority of the trial court to designate the crime at this stage, while not specifically provided for by statute or rule, is implied under the circumstances. If it were not, then an untenable and illogical result follows, namely that the crime remains designated a felony because of the fact that probation was granted. Had the probationary term been less than one year, under this concept, it would still be a felony. Thus, no open-ended crime for which probation was given could ever be designated a misdemeanor, even though the term of probation was, for example, six months. I do not think the criminal statutes involved should be read to mean that the trial court is barred from granting probation when it wishes to designate the open-ended crime as a misdemeanor. If this premise is correct, then under such circumstances the designation must occur at some stage. If the trial court can designate at the sentencing hearing when probation begins, I see no reason why the designation cannot be made at the termination of probation.
In summary, the statutes relating to open-end offenses have left an open end to the question of what results follow when probation is granted. Recognizing this, the interpretation given them by the majority seems to me to run counter to the basic idea of an open-ended offense — namely to give the trial court a discretionary tool which will motivate the offender to rehabilitate himself.
I concur with the majority in affirming the conviction and in addition would also affirm the suspension of sentence and the grant of probation.
SUPPLEMENTAL OPINION
JACOBSON, Presiding Judge.On April 21, 1977, this court issued its opinion in this matter, in essence holding that a defendant who has been placed on probation for a period of five years for the violation of- an “open ended” offense may not, at the successful conclusion of that probation, have this conviction designated as a misdemeanor. (Chief Judge Donald F. Froeb dissented from this holding.)
Both parties have filed motions for rehearing, the state urging that misdemeanant treatment can be afforded a successful probationer even though the term of probation exceeds one year. Appellant Risher joins in this contention. In addition, Risher contends that the promised misdemeanor treatment on successful completion of his probationary term, if granted, was an inducement to his plea of guilty and if that treatment cannot legally be afforded, his plea of guilty was involuntary.
The matters raised by the state’s motion for rehearing were adequately considered at the time of our original opinion and nothing new having been added, a majority of this court voted to deny its motion for rehearing. (See dissent of Froeb, C. J.)
However, the state has pointed out that numerous probationers are presently serving probation terms under conditions similar to those imposed upon Risher in this case, i. e., the expectation that their successful completion of probation — even though the term of that probation exceeds one year, will result in their conviction being designated as a misdemeanor. Since our opinion appears to be a departure from what was considered a legally acceptable term of probation, we now are convinced, in order to avoid a disruption of the judicial *600process, that our holding will apply to this case but shall otherwise have prospective operation only. That is, it will only be effective as to those placed on probation after the date of the issuance of our original opinion in this matter.
As to Risher’s contention that if he cannot be afforded misdemeanor treatment, his original plea of guilty was involuntary, we agree. The reading of the plea taking transcript leaves a clear impression that the possibility of misdemeanor treatment would be offered even though the term of probation exceeded one year. Under these circumstances, we cannot say that this possibility was not an inducement to Risher to enter his plea of guilty. State v. Hooper, 107 Ariz. 327, 487 P.2d 394 (1971).
Therefore, Risher’s plea of guilty is vacated, and any previous charges are reinstated and the matter remanded for further proceedings.
OGG, J., concurs.