dissenting:
I respectfully dissent. The majority first concludes that a defendant is “in custody” if a trial court finds that a rehabilitation program in which the defendant participates imposes conditions “as onerous and as restrictive on movement and conduct as those a defendant would experience if he were in jail.” In my view, that conclusion is incompatible with the consistent interpretation Arizona’s courts have given the term “in custody” and is at odds with legislative intent. The majority then apparently makes the factual determination that the New Arizona Family program meets its new legal test, a question not addressed by the trial court and not supported by the record below. I would conclude that the defendant is not entitled to presentence credit for time spent in the New Arizona Family rehabilitation program because he was not “in custody” as required by A.R.S. § 13-709.B.
*585In determining whether A.R.S. § 13-709.B provides presentence credit for time spent in a drug rehabilitation program, we do not write on a blank slate. Arizona’s courts consistently have interpreted the “in custody” requirement of section 13-709.B as referring to time spent in the actual or constructive control of prison or jail authorities. In State v. Vasquez, 153 Ariz. 320, 736 P.2d 803 (App.1987), Division Two of this court, in addressing the identical issue we address today, concluded that the clear statutory language of section 13-709.B indicates that a defendant is entitled to “credit only for periods in which a defendant is in the actual or constructive control of jail or prison officials.” In State v. Ritch, 160 Ariz. 495, 774 P.2d 234 (App. 1989), the court considered whether a defendant is entitled to credit for time spent in a juvenile facility prior to transfer to superior court for prosecution as an adult. The court stated that a defendant is entitled to credit only when in actual or constructive control of jail or prison officials and that “a central conceptual difference exists between incarceration and structured rehabilitation and treatment.” Ritch, 160 Ariz. at 497, 774 P.2d at 236. Similarly, in State v. Cereceres, 166 Ariz. 14, 800 P.2d l (App.1990), this court held that “the legislature intended that custody, for purposes of A.R.S. § 13-709(B), be equated with incarceration in a jail or prison and not merely with the substantial restraint of freedom____” In reaching this conclusion, the court again emphasized that “there is a conceptual difference between incarceration and a structured treatment program.” Cereceres, 166 Ariz. at 16, 800 P.2d at 3. All of these decisions conclude that the term “in custody” refers only to time spent in the actual or constructive control of prison or jail officials.
Moreover, the decisions summarized above are entirely consistent with Green v. Superior Court, 132 Ariz. 468, 647 P.2d 166 (1982), on which defendant relies. In that case, the court held that a defendant is entitled to credit for authorized release from incarceration in the county jail imposed as a condition of probation because the failure to give him credit for release time resulted in incarceration in excess of the one-year limitation of A.R.S. § 13-901.F. In Green, however, the defendant was under the actual or constructive control of jail authorities at all times. In this case, in contrast, prison officials had neither actual nor constructive control over the defendant while he participated in the rehabilitation program. Although defendant was subject to the supervision of a probation officer, probation officers are not jail or prison officials. Vasquez, 153 Ariz. at 321, 736 P.2d at 804. Therefore, according to the consistent interpretation afforded the term “in custody,” defendant is not entitled to credit for the time he spent in the New Arizona Family.
II.
Although defendant argues that giving presentence credit for time spent in drug rehabilitation programs furthers the legislative intent of section 13-709.B, I would conclude that the legislature has indicated the contrary intent quite clearly. The legislature has prescribed, in detail, the dispositions available to a trial court when sentencing a defendant. See A.R.S. §§ 13-701 to -710; State v. Pike, 133 Ariz. 178, 650 P.2d 480 (App.1982) (fixing sentences for a particular offense is left to the legislature). Additionally, as this court pointed out in State v. Mathieu, 165 Ariz. 20, 795 P.2d 1303 (App.1990), when the legislature has intended that a defendant receive credit for time spent in custody in various circumstances, it has enacted appropriate specific legislation. See, e.g., A.R.S. §§ 13-709.C (mandates credit for incarceration under a vacated sentence), -605.D (mandates credit for periods of confinement for diagnostic purposes), and -606.B (requires credit for, periods of civil commitment). If the legislature had intended that time spent in a rehabilitation program be credited against a sentence of imprisonment, I think it most likely the legislature would have enacted similar legislation expressly directed to rehabilitation programs.
*586The conclusion reached by the majority, however, by allowing credit for time spent in a drug rehabilitation program, in essence creates a new, alternative disposition and impinges upon the legislature’s prerogative to prescribe sentences. Moreover, by allowing credit for time spent in a drug rehabilitation program, the court deprives those on probation of an incentive to participate fully in such programs and to comply with their conditions of probation. Vasquez, 153 Ariz. at 322, 736 P.2d at 805. For those reasons, I view the decision of the court as being contrary to legislative intent.
III.
Finally, the majority concludes that this defendant was confined under conditions “as confining and restrictive as those he would have been subjected to in jail.” Although the test relied upon requires trial judges to decide on a case-by-case basis whether the conditions of a drug rehabilitation program meet the test, the trial judge in this case made no such finding.
The testimony about the “onerous” nature of the conditions and restrictions of the program permits more than one inference. The program apparently is highly structured. The degree of restriction of movement, however, varies according to the level of responsibility accorded participants. At the first level, defendant testified, he could have only limited contact with those outside the program, although he could leave the facility for medical appointments and court appearances. At the second level, which defendant reached, he also could accompany other participants when they left the facility on business or on passes. At the third level, not described in any detail, the program apparently permitted defendant even more freedom. I am not certain whether the test here adopted recognizes all levels, or only the most restrictive, as sufficiently onerous and restrictive to justify classifying participants as being “in custody.”
The testimony also was unclear as to whether the conditions imposed upon the defendant were “onerous.” On every day other than Tuesday, the defendant participated in group meetings for approximately .four hours. Most of those sessions were described variously as “talkie groups,” recreational groups, planning sessions, community meetings, and educational groups.. The defendant’s counselor described the two-hour special group session on Tuesday, in contrast, as being “pretty intense.”
No testimony at all described the conditions the defendant would have encountered had he spent the same time in prison. The sum total of the testimony comparing the conditions at the New. Arizona Family and those at prison came from the defendant, who testified in response to his counsel’s leading questions as follows:
Q. Brian, compared to the time in custody in the county jail, your time in the Arizona Family, which is the more difficult time? Which is the harder time to do?
A. At the Arizona Family.
Q. More restrictions?
A. Uh-huh.
Q. More restraints on your time?
A. That’s right.
The trial judge, when asked by the defendant to credit the time in the program against his sentence, commented, “I agree [the time spent in the program] probably was tougher and stricter in many ways than your county jail time was.” The trial judge did not make any findings sufficient to fulfill the new legal test defined by the majority.
I would conclude that the testimony presented is not sufficient for us to conclude, as a matter of law, that the entire time spent by the defendant with the New Arizona Family program was as onerous and restrictive as institutional confinement.
IV.
I also am concerned about the many questions and problems raised by this expansive interpretation of “in custody.” My primary concern is that the interpretation may well make available to those able to pay for private rehabilitation services an alternative to incarceration not available to indigent defendants. Moreover, numerous questions remain unanswered, including: Does a person commit an escape, punisha*587ble as a felony pursuant to A.R.S. §§ 13-2502, -2503, if he leaves a rehabilitation program? Must the trial court determine whether a particular program complies with the announced test at the time it defines the terms of probation, or only if a defendant fails to complete the program? Should the trial court, in deciding the amount of credit due, credit only those days of maximum restraint or all days spent in a program, regardless of degree of restriction? Does the trial court have discretion to credit only some days spent in a program? If a defendant who leaves a rehabilitation program is sentenced to imprisonment, does he receive early release credits consistent with A.R.S. §§ 41-1604.06 and -1604.07 for time spent in the program? If a program’s approach or degree of restriction is modified, must the court conduct a hearing to determine whether the program still qualifies for credit?
Unanswerable questions such as these necessarily arise when this court enters the legislative arena. For that reason, and the reasons discussed above, I would affirm the order of the trial court.