dissenting.
[¶ 14] I respectfully dissent because I believe the majority attributes words to N.D.C.C. § 12.1-32-06.1(1), the governing statute, that are not in the statute.
[¶ 15] The majority reads the words “release from incarceration” in the statute to necessarily mean release from incarceration “for the same offense,” words not contained in the statute. I would not conclude the legislative branch in enacting § 12.1-32-06.1(1) did not realize that a person might be incarcerated for more than one crime at the same time. Assuming, as I do, the lack of that naivete, the Legislature nevertheless did not include the words the majority now ascribes to the statute.
[¶ 16] That statute does not contain any language limiting its application to incarceration for the same offense. Rather, the plain, ordinary and commonly understood meaning of “release from incarceration” is termination of imprisonment and a return back into the community. Under the ordinary and commonly understood interpretation of the statutory terms, a defendant whose shorter prison term has expired but who remains in prison on a longer sentence is not considered to be “release[d] from incarceration.” Supporting this interpretation is the view that probation generally is served in the community, unless expressly ordered otherwise by the court. See State v. Berger, 2002 ND 143, ¶¶ 15-16, 651 N.W.2d 639 (VandeWalle, C.J., concurring); Black’s Law Dictionary 1322 (9th ed.2009) (probation “releases a convicted person into the community instead of sending the criminal to jail or prison”); 21A Am.Jur.2d Criminal Law § 844 (2008) (same). In State v. Roth, 2008 ND 227, ¶ 10, 758 N.W.2d 686, this Court clearly indicated the sentencing court could have made the five-year period of probation commence upon completion of the unexpired sentences on other unrelated convictions, extending the period of pro*229bation longer than five years after the expiration of imprisonment on the conviction for which probation was imposed. Thus, although probation may begin during incarceration when the sentence specifically so provides, we have previously indicated that it ordinarily does not begin until release from incarceration.
[¶ 17] The majority opinion appears to modify, if not outright reverse, prior opinions of this Court. In Berger, 2002 ND 143, ¶ 16, 651 N.W.2d 639, in a special concurrence, I observed that “unless ... the trial court provides to the contrary in the sentence, the period of probation would not begin to run until after the term of imprisonment under the common definition of the term ‘probation.’ ” Now, even in those instances in which the trial court specifies the probation should not begin until release from incarceration, the probation will automatically begin while the defendant remains incarcerated for another conviction.
[¶ 18] But, more significantly, the result of the majority opinion may very well be that the intent of a judge who believes a defendant should not be released from incarceration without probation and reduces the sentence to incarceration so as to include a period of probation after release from incarceration will be thwarted. Thus, because of a subsequent conviction for another crime during the time of incarceration and a sentence to further incarceration by a different judge who provides for no probation in the subsequent sentence, that defendant will be released from incarceration without any subsequent period of probation.
[¶ 19] Section 12.1-32-06.1(1), N.D.C.C., does not prohibit the district court from sentencing a defendant to a period of probation extending five years after the defendant’s actual release from incarceration and return to the community, even if the defendant’s incarceration on the conviction for which probation was imposed expired earlier. As the majority opinion notes, in State v. Dailey, 2006 ND 184, 721 N.W.2d 29, we concluded the sentence was within the statutory limits. If the sentence was within the statutory limits it is not illegal. See, e.g., State v. Jacobson, 419 N.W.2d 899, 903 (N.D.1988). I therefore conclude that Dailey’s sentence was not illegal and the district court did not err in denying his application for post-conviction relief.
[¶ 20] DALE V. SANDSTROM, J., concurs.