specially concurring.
I agree that Baker does not have an actionable claim against Burlington, but in the interests of justice mention should be made that Baker did not falsify his application for employment when he answered that he had not been convicted of a crime.
At oral argument before this Court, Baker was represented by the same counsel who had counseled him to plead guilty, which was done in anticipation that judgment against Baker would be withheld, and he would be given a probationary period in which to prove himself. His counsel explained that routinely Baker and many others similarly situated, usually youthful first offenders, do not contest their guilt where legal advice is given them that the grave future consequences of a felony conviction are avoided by a withheld judgment and a successful probation.1
Here it is readily apparent that the trial judge before whom Baker entered his plea was not unmindful of that benevolent philosophy of the withheld judgment statutory provisions. The court minutes in the file of the criminal proceedings show that Baker did plead guilty, do not show that the plea was accepted, do show a recommendation by the prosecutor that Baker receive a withheld judgment, and do show that the district court ordered that judgment be withheld for 2 years, during which time Baker was to undergo supervised probation. The same file shows a successful probation, a discharge from probation, and a dismissal of the action. In the interim, the railroad agent who examined the court records saw documentation showing that Baker “was, on May 5, 1972, placed on probation for a period of two years and sentence withheld for that period of time.” (Emphasis supplied.) A conclusion that Baker had been convicted was justified by either or both of not one but two orders which were entered supposedly to encompass the court’s ruling of May 5, 1972.
*694One, dated May 5, 1972, follows almost verbatim a form (7-2-B)2 found in the Idaho Sentencing Manual — a form designed for use in two different situations, i. e., where judgment is withheld or where judgment of conviction is entered and sentence imposed but execution of sentence is suspended. Whoever, and the record does not disclose, attempted to use this form erred and failed to use the alternative which would show that judgment was withheld.
A second order filed on May 16, 1972, creditably not an attempt to follow a form, erroneously recited that the trial court “Adjudged and Decreed” that Baker was guilty of two felonies.
Neither the order of May 5 nor the order of May 16 correctly embodied the trial court’s verbal ruling that carefully avoided the entry of a judgment of conviction. Unfortunately both were signed by the district judge who, as was said in State v. Phillips, 99 Idaho 354, 581 P.2d 1173 (1978) (Bistline, J., dissenting), is entitled to assume that orders placed before him for signature accurately reflect the ruling which the court has made. Although Baker himself signed his name on the order of May 5, 1972, it was only to acknowledge that he understood the terms of his probation. He could hardly be charged with enough expertise to ascertain that the wrong form had been used. Just as in State v. Phillips, the use of a printed form has led to a serious mistake. Prosecutors should listen attentively to a court’s ruling and prepare a written order which embodies that ruling. For one, I again would discourage the practice of attempting to fit a court’s ruling into a printed form.
. In State v. Cliett, 96 Idaho 646, 534 P.2d 476 (1975), the Court stated:
Where judgment has been withheld, as authorized by I.C. § 19-2601, judgment has not been entered; and it follows that there is no valid conviction ....
“In a more technical, legal sense, conviction means the final conclusion of the prosecution against the accused, including the judgment and sentence rendered pursuant to a verdict or plea of guilty, and it is frequently used to denote the judgment or sentence. * * * A person, after plea of guilty or verdict, has been convicted when the court decrees that he is guilty.
* * * * * *
“Hence, when the court, pursuant to plea of guilty or verdict of a jury, adjudges the defendant guilty of burglary, he has been convicted of a felony within the meaning of Sec. 19-2514, I.C. (persistent violator statute).” (State v. O’Dell) 71 Idaho (64) at 68-69, 225 P.2d (1020) at 1022 (emphasis added).
In a subsequent case, Ex parte Medley, 73 Idaho 474, 253 P.2d 794 (1953), this court ruled that a trial court may properly withhold judgment without first adjudicating the defendant’s guilt; in doing so, this court stated that:
“The statute [I.C. § 19-2601, authorizing the withholding of judgment] does not require that the court must first adjudicate the guilt of defendant. The obvious and commendable objective of the Act which seeks in a proper case to avoid the stigma of a judgment of conviction would be in major part defeated if the contention of petitioner is accepted. To withhold judgment añer a plea of guilty protects the defendant at that time against the stigma of a conviction which may be forever avoided should the defendant conform to its terms and conditions. This creates, and rightfully so, a hope in the heart of the accused that he may ultimately be released under an order of probation without the stigma of a judgment of conviction. This is an incentive for complete rehabilitation and reform, one of the salutary objectives of the Act.” 73 Idaho at 479, 253 P.2d at 796 (emphasis added).
Under O’Dell and Medley, when the court has withheld judgment and has not adjudged the defendant’s guilt, the defendant has not been convicted.
Id. at 649-50, 534 P.2d at 479-80 (emphasis in original). Rule 32(b) of the Idaho Criminal Rules can only be read as standing for the proposition that a conviction of record does not occur until there is entered a written judgment of conviction. This is equally borne out by the Idaho Sentencing Manual, page 6.5-1, and ensuing suggested forms.
. Form 7-2-B is a multiple-choice affair. The title of the form reads: “Order Withholding Judgment or Suspending Sentence and Order of Probation.” In either event, it is an order of probation, but it has to be either an order withholding judgment or a judgment of conviction with sentence imposed but execution suspended. It cannot be both. A paragraph in the body of this form gives the scrivener two alternatives:
AND WHEREAS, the District Court, having ascertained the desirability of granting the petition of probation, does hereby order and decree that the said_be placed on probation, and (judgment is hereby withheld) (or sentence is hereby suspended) for a period of-years(s). .