dissenting.
I dissent. A sentence to a term of incarceration for four years cannot be imposed consecutively to a prior one year jail term, which was imposed as a condition of probation and was unrevoked at the time of sentencing. The simple reason for this is that probation jail time is not a “sentence” but is a condition of probation. It is a suspended sentence.
In State v. Barksdale, 143 Ariz. 465, 468, 694 P.2d 295, 298 (App.1984) we said:
We agree with the appellee and the trial court, however, that a suspended sentence resulting in probation does not constitute a “sentence” as that term is used in the last sentence of A.R.S. § 13-604.01(B). In State v. Risher, 117 Ariz. 587, 574 P.2d 453 (1978) our supreme court held “probation is not a sentence, but a feature of imposition of sentence.” This view was expanded by the supreme 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. See also State v. Carranza, 156 Ariz. 188, 751 P.2d 38 (App.1988).
Thus, jail time as a condition of probation is not “incarceration” pursuant to A.R.S. §§ 13-701, 13-702, or 13-709. Rather, it is imposed, pursuant to A.R.S. § 13-901(F) for rehabilitation purposes. State v. Moore, 149 Ariz. 176, 177, 717 P.2d 480, 481 (App.1986). There is no sentence upon which to impose a consecutive sentence.
Certainly, if the trial judge revoked appellant’s probation and sentenced appellant on the probation felony, the sentence here would be proper.
I would vacate the sentence and remand for resentencing.