dissenting.
After the probation officer stated that defendant told him that he hadn’t beep able to pay all of his fine and probation fees because “business was down,” the following exchange occurred:
THE COURT: It’s fair to say you were going to let him work out some arrangement towards paying the fines and fees as long as he otherwise had a good probation background; isn’t it true?
THE WITNESS: That’s true.
THE COURT: So that really what happened is when you discovered that he was using marijuana and cocaine, that you felt that he was no longer acting in good faith?
THE WITNESS: Yes, sir. I didn’t file a petition just because of the fines and fees.
DEFENSE COUNSEL: I just wanted to see — there’s been no evidence on any of the other allegations; that, in fact, the prosecution agreed to dismiss them.
THE COURT: Well, they were going to dismiss them. I just need them to prove it.
What I’m trying to do is explain to you and the defendant why he’s here. He’s here because he’s not paying his fines and he may or may not be able to pay those fines.
But since he’s taken it upon himself to, in addition, not be able to pay his fines, *591that he’s got to support his family or whatever, he also takes it upon himself to use drugs. We’re not going to prove that but, you know, unless he’s got a lot of friends who give it to him, he must be using that money to buy it.
DEFENSE COUNSEL: I don’t think that’s ... I just would like to object to-that. Since we’re not going to prove that, I don’t see how that should be appropriately admitted and certainly not in evidence.
THE COURT: Anything else?
DEFENSE COUNSEL: No, nothing else at this time, Your Honor.
PROSECUTOR: I have nothing.
State rests.
THE COURT: Anything?
DEFENSE COUNSEL: No statements at this time.
THE COURT: It’s the judgment of the Court that there’s sufficient evidence to establish you violated your conditions of probation, one, two and three, and the State’s met the burden by a preponderance of the evidence.
As the majority concedes, the state did not establish that defendant was able to pay. More fundamentally, in my view, it established that probation was revoked for possession of drugs, an offense that was neither charged nor proved, save in the insinuations of the supposedly neutral fact-finder. It does not comport with due process, to put it mildly, to allow such a result to stand.
The majority relies on State v. Jameson, 112 Ariz. 315, 541 P.2d 912 (1975), and State v. Wilson, 150 Ariz. 602, 724 P.2d 1271 (App.1986), for the proposition that so long as one violation is proven the orders of revocation and disposition may stand even if premised in part on findings of violations that are improper. For three reasons I find those cases unpersuasive. First, both involved far more substantial violations — possession of a stolen vehicle in Jameson and absconding for a period of a year before being arrested in Wilson. Second, neither involved reliance on uncharged acts. Finally, neither case addressed the line of authority in the sentencing context, holding that where a trial court has relied on inappropriate factors and where it is impossible to determine what disposition would have been made if only proper factors were considered, the case must be remanded for resentencing. See State v. Thurlow, 148 Ariz. 16, 712 P.2d 929 (1986); State v. Just, 138 Ariz. 534, 675 P.2d 1353 (App.1983); see also State v. Gillies, 135 Ariz. 500, 662 P.2d 1007 (1983). The discretion given a trial court under Rule 27.7(c)(2), Ariz.R.Crim.P., 17 A.R.S., to continue or modify probation instead of revoking it after finding a probation violation, is indistinguishable from the discretion given the trial judge in sentencing. It ought no more be immunized from review than sentencing itself; nor ought reliance on improper factors be excused there when not excused elsewhere.
I would remand for a new disposition hearing.