dissenting:
I dissent. The majority opinion equates the result of a Rule 27.7(b)1 probation violation hearing, where the judge found no violation, with a full-blown Rule 19 2 criminal trial on the merits resulting in the defendant’s acquittal. Then, by applying the doctrine of collateral estoppel, the majority holds that the doctrine precludes the criminal prosecution of the defendant for the crime alleged and presented as a violation at the probation violation hearing. Such a holding rejects the basic difference between a probation violation hearing on the one hand, and the sentence in a criminal proceeding on the other. The distinction between the two procedures is illustrated in State v. Risher, 117 Ariz. 594, 574 P.2d 460 (App.1977), which was vacated by our supreme court at 117 Ariz. 587, 574 P.2d 453 (1978). In our Risher opinion, we noted that the award of probation was the sentence. The supreme court rejected this view and held “probation is not a sentence, but a feature of imposition of sentence.” This view was expanded by the court in Pickett v. Boykin, 118 Ariz. 261, 576 P.2d 120 (1978). There the court held that since the defendant was serving time in the county jail as a condition of probation and not as a “sentence”, he was not entitled to the double time allowance and must serve the full time awarded as a condition of probation. The court said:
Probation is not a sentence but rather a feature of suspension of imposition of sentence. State v. Risher .... Thus incarceration as a part of probation is not a sentence of confinement but simply one of the conditions which is established at the time sentence is suspended.
118 Ariz. at 262, 576 P.2d at 121.
A reading of the last eight paragraphs of the majority opinion here demonstrates that it equates a probation revocation proceeding with a criminal proceeding. Our supreme court and the United States Supreme Court have held otherwise. See the cases collected in State v. Smith, 112 Ariz. 416, 542 P.2d 1115 (1975). In a specially concurring opinion in Smith, Justice Hays said:
I know of no decision of the United States Supreme Court which mandates the application of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), to probation revocation proceedings. I need look no further than the majority opinion for cases which emphasize that a probation revocation hearing is not a criminal proceeding. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). The purpose of a revocation hearing is for the trial judge to ascertain if continued probation is merited in the best interests of the probationer and society. State v. Bates, 111 Ariz. 202, 526 P.2d 1054 (1974). As long as the use of the confession is properly restricted to the issue of probation revocation, it is detrimental to the concept of probation to turn a revocation hearing into a criminal proceeding when by intent the revocation hearing should serve a purpose similar to that of a presentence report. In this context, I note that even hearsay is permitted in determining whether probation should be revoked. Rule 27.7, Rules of Criminal Procedure.
The majority opinion defeats the rehabilitative purpose for which probation as a concept was established and constructs *225an additional procedural barrier to individual therapy. (Emphasis added).
112 Ariz. at 421, 542 P.2d at 1120.
The Smith view has become the prevailing view in State v. Alfaro, 127 Ariz. 578, 623 P.2d 8 (1980). There the court rejected the application of the exclusionary rule to probation revocation hearings and said:
We think any additional benefit in double application of the exclusionary rule is outweighed by the harm done to the rehabilitative goal of probation. Rather than saying the police will have less incentive to obey the law, we think the probationer will have greater incentive to obey the terms of his probation if any reliable information will be available at a probation revocation hearing. We hold the exclusionary rule does not apply in probation violation hearings.1
Thus, it is that “a proceeding for revocation is not subject to the limitations of a trial and is not governed by the same rules. [Citations omitted]. To remain at liberty under a suspended sentence is not a matter of right in Arizona, but a matter of grace and is purely in the discretion of the trial court. State v. Maxwell, [97 Ariz. 162, 308 P.2d 548 (1965) ].” State v. Walter, 12 Ariz. App. 282, 284, 469 P.2d 848, 850 (1970).
The distinction, therefore, between a criminal trial and the resultant sentence and a probation revocation proceeding is significant. A criminal trial is a “punitive” action by the state, while probation, parole, and revocation proceedings are “remedial” actions intended to benefit both the defendant and the state. See Standlee v. Rhay, 557 F.2d 1303 (9th Cir. 1977). A second trial on a criminal charge may be barred by the doctrines of double jeopardy or collateral estoppel, but punishment flowing from the revocation of probation is not punishment for the probationary breach, but is instead punishment on the original charge. State v. Crowder, 103 Ariz. 264, 440 P.2d 29 (1968).
The difference between a second trial on a criminal charge and a revocation of probation hearing is illustrated in State v. Pietsch, 109 Ariz. 261, 508 P.2d 337 (1973), where our supreme court held that no jeopardy attached where the county attorney dismissed the criminal complaint before the preliminary hearing but then used the same criminal act to obtain a revocation of defendant’s probation. Further, in State v. Jameson, 112 Ariz. 315, 541 P.2d 912, 76 A.L.R.3rd 556 (1975), our supreme court held that the dismissal or acquittal of a related criminal charge, during or after trial, did not preclude the use of those circumstances for probation revocation consideration. The court said:
The record indicates that a dismissal of the related criminal action occurred during the course of trial and so constitutes an acquittal of the appellant on the possession of a stolen vehicle charge. This fact raises the issue of whether the same conduct as that litigated in the criminal action can thereafter be made the subject of a probation revocation. In People v. Grayson, 58 Ill.2d 260, 319 N.E.2d 43 (1974), cert. denied, 421 U.S. 994, 95 S.Ct. 2001, 44 L.Ed.2d 484 (1975), the Illinois Supreme Court adopted the view that the doctrine of collateral estoppel precluded the state from relitigating the question of armed robbery in a probation revocation hearing after the probationer had been acquitted of the charge in a previous criminal proceeding. In a more recent decision, the Supreme Court of Florida declined to extend the collateral estoppel doctrine in such circumstances, reasoning that the probation revocation hearing is not a second prosecution for the same offense. Russ v. State, 313 So.2d 758 (Fla.1975). We consider the Florida Supreme Court’s rationale to be the more presuasive [sic] in resolving this conflict of authority and superior in its understanding of the proper relationship between criminal proceedings and probation revocation hearings. Finally, we express disapproval of the practice of deferring the hearing on probation revocation until *226after the adjudication of guilt or innocence on the criminal charge when both proceedings are based upon the same facts. The question of whether the accused has violated the terms of his probation should be promptly resolved.
112 Ariz. at 318, 541 P.2d at 915.
In Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), the Supreme Court held that collateral estoppel is part of the guarantee against double jeopardy and directed that the principle be applied with “realism and rationality.” Under Ashe, a court must determine whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration. Federal courts interpreting Ashe have suggested a three-step approach: (1) identification of the issues in the two actions to. determine whether the issues are sufficiently similar and material in both actions to justify invoking the doctrine; (2) examination of the record of the prior case to determine whether the issue was “litigated” there; and (3) examination of the record of the prior proceeding to determine whether the issue was necessarily decided in the first case. United States v. Hernandez, 572 F.2d 218 (9th Cir. 1978).
Regarding the first step, the issues differ substantially in the two types of proceedings. The issue in a probation revocation is whether the probationer violated the terms of his probation, and, if so, whether the judge, in his discretion, should revoke the probation, permit the probation to continue, or change the terms of the probation. Rule 27, Rules of Criminal Procedure, 17 A.R.S. The issue is not whether he committed a crime but whether he violated the terms of his probation. No jury is involved in the proceeding and the trial judge determines the issue within his discretion. A criminal proceeding, on the other hand, determines the issue of the guilt or innocence of the defendant, on the merits, usually with a jury. The latter is the stuff from which double jeopardy and collateral estoppel are created.
Here the trial court at the violation hearing did not determine the guilt or innocence of the defendant. Further, the state made no effort to meet the burden of proof required in a criminal proceeding. To hold that the violation hearing thus translates into a bar to further criminal prosecution requires our supreme court to substantially reverse their admonition, quoted both in the majority opinion and here, in State v. Jame-son, supra, and to disregard the substantial differences and purposes of the two proceedings.
I would affirm the jury conviction of sexual assault.
. Rules of Criminal Procedure, 17 A.R.S.
. Id.
[1 For a collection of the numerous other jurisdictions in accord with our decision, see United States v. Frederickson, 581 F.2d 711 (8th Cir. 1978). See also United States ex rel. Sperling v. Fitzpatrick, 426 F.2d 1161 (2d Cir. 1970) (excellent discussion of the underlying policy considerations).]