dissenting:
Although I am sympathetic with the majority’s aims, I must dissent both from its affirmance of State v. Ditmars, 98 Idaho 472, 567 P.2d 17 (1977), cert. denied 434 U.S. 1088, 98 S.Ct. 1284, 55 L.Ed.2d 793 (1978), and from its ruling that the Board of Corrections is constitutionally required to afford the defendant an array of procedural due process protections in connection with the preparation of the board’s report and evaluation.
In Ditmars this Court ruled that neither I.C.R. 43, which requires that the defendant be present “at the imposition of sentence,” nor constitutional provisions, U.S.Const. amend. XIV; Idaho Const, art. 1, § 13, require the district court to give a defendant a hearing following the expiration of the period of retained jurisdiction. The Court’s decision in Ditmars was based on a technical distinction between the “imposition of sentence,” at which time in the Court’s view the defendant was entitled to a hearing, and an order relinquishing jurisdiction following a period of retained jurisdiction, which in the Court’s view merely effectuated the “execution” of the sentence previously “imposed” and at which time the defendant was not entitled to a hearing. 567 P.2d at 19. Because of this semantic analysis in Ditmars, the Court, in my view, *391lost sight of the constitutional sentencing requirements of the courts. Now, recognizing in this case that somewhere in this 120 day retained jurisdiction procedure the defendant is entitled to procedural due process, the Court is about to make its second mistake by placing that responsibility on the Board of Corrections.
The Court ruled in Ditmars that if the judge exercises his discretion under I.C. § 19-2601(4), the execution of that sentence is immediately suspended and the defendant is committed to the Board of Corrections for 120 days.1 In such circumstances that initial sentence is clearly tentative and may not be the final sentence to which the defendant will ultimately be subject. The whole purpose of the retained jurisdiction procedure is to enable the court to further evaluate the defendant’s prospects for rehabilitation before reaching a final decision on his sentence. The United States Supreme Court in considering this question in the context of a closely analogous procedure in the federal system2 stated:
“[W]e hold that the District Court erred in the present case when, modifying its original oral § 4208(b) order, it fixed the final sentence in the absence of respondent and his counsel. It is plain that as far as the sentence is concerned the original order entered under § 4208(b) is wholly tentative. That section merely provides that commitment of a defendant to the custody of the Attorney General ‘shall be deemed to be for the maximum sentence,’ but does not make that the final sentence. The whole point of using § 4208(b) is, in its own language, to get ‘more detailed information as a basis for determining the sentence to be imposed * * *.’ (Emphasis supplied.) It is only after the Director of the Bureau of Prisons makes his report that the court makes its final decision as to what the sentence will be. Rule 43 of the Federal Rules of Criminal Procedure specifically requires that the defendant be present ‘at every stage of the trial including * * the imposition of sentence * * *.’ There is no such finality of sentence at a § 4208(b) preliminary commitment. The use of § 4208(b) postpones action as to the final sentence; by using that section the court decides to await studies and reports of a defendant’s background, mental and physical health, etc., to assist the judge in making up his mind as to what the final sentence shall be. It *392is only then that the judge’s final words are spoken and the defendant’s punishment is fixed. It is then that the right of the defendant to be afforded an opportunity to make a statement to the judge in his own behalf is of most importance. This right, ancient in the law, is recognized by Rule 32(a) of the Federal Criminal Rules, which requires the court to ‘afford the defendant an opportunity to make a statement in his own behalf and to present any information in mitigation of punishment.’ This right would be largely lost in the § 4208 proceeding if for administrative convenience the defendant were not permitted to invoke it when the sentence that counts is pronounced.” United States v. Behrens, 375 U.S. 162, 164-66, 84 S.Ct. 295, 296-97, 11 L.Ed.2d 234 (1963).
In concurring in the result in Behrens, Justice Harlan stated:
“The elementary right of a defendant to be present at the imposition of sentence and to speak in his own behalf, which is embodied in Rule 32(a) of the Federal Rules of Criminal Procedure, is not satisfied by allowing him to be present and speak at a prior stage of the proceedings which results in the deferment of the actual sentence. Even if he has spoken earlier, a defendant has no assurance that when the time comes for final sentence the district judge will remember the defendant’s words in his absence and give them due weight. Moreover, only at the final sentencing can the defendant respond to a definitive decision of the judge.” 375 U.S. at 167-68, 84 S.Ct. at 298.
Similarly, I.C.R. 32(a) and 43 entitle a defendant to be present at the time the court makes it final decision concerning the sentence. In both Ditmars and this case, that final decision, as a practical matter, was made at the time the district court decided to relinquish retained jurisdiction and to effectuate the previously imposed, but suspended, sentence. To conclude that the requirements of I.C.R. 43 are satisfied simply because the defendant was present at the time a sentence was initially imposed, which sentence was suspended in order to commit him to the Board of Corrections for 120 days, is to ignore the reality of the retained jurisdiction sentencing process.
There are still other reasons — reasons not addressed by the Court in Ditmars — why the defendant must be afforded a hearing at the time the court decides whether to relinquish jurisdiction. This Court has long held that a defendant is entitled to a hearing and to present evidence concerning his request for probation. In State v. Cornwall, 95 Idaho 680, 518 P.2d 863 (1974), we summarized this area of law as follows:
“Before passing judgment, the trial court must grant an applicant for probation a hearing, if he desires one, at which time the applicant must be afforded the opportunity to present evidence which supports his version of the facts, which shows that he is a proper subject for probation, and which rebuts any adverse evidence before the court. [Citations omitted.] In addition, where the court has before it a presentence investigation report, the applicant must have a reasonable opportunity to examine the report and present evidence which rebuts or explains any of the report’s contents. State v. Grady, 89 Idaho 204, 404 P.2d 347 (1965).” 95 Idaho at 682-83, 518 P.2d at 866.
A trial court’s decision to retain jurisdiction for 120 days is surely not a final decision whether to place the defendant on probation. Rather, it is a decision to postpone a final decision concerning probation in order to permit further evaluation of the defendant by the Board of Corrections. In Ditmars and the instant case the decisions which had the effect of finally denying the defendants’ requests for probation were the trial courts’ decisions made at the end of the periods of retained jurisdiction. In both this case and Ditmars the trial courts’ decisions were based on reports submitted by the Board of Corrections. In my view the defendant’s right to an opportunity to present evidence “which shows that he is a proper subject for probation, and which rebuts any adverse evidence before the court,” 95 Idaho at 683, 518 P.2d at 866, *393must include the right to a hearing at which he is given the opportunity to rebut or explain the board’s report and recommendation. The majority opinion clearly depicts the importance many trial judges place on the board’s report. The defendant’s right to present evidence concerning his suitability for probation and to explain evidence already before the court, a right this Court has consistently upheld, is hollow indeed if the defendant is denied the right to rebut or explain the report which is likely to have the most significant effect on whether he will be ultimately granted probation.
In my view these reports are closely analogous to presentence investigation reports and are in the nature of the additional presentence reports referred to in I.C.R. 37(e), which provides:
“(e) Additional Report May be Ordered. When, in the sentencing judge’s discretion, the information contained in the presentence report is not sufficient for determining sentence, the sentencing judge may order an additional investigation of the case and use such results in considering the sentence.”
I therefore believe that questions concerning these reports would be best resolved by reference to the provisions of I.C.R. 37(f) which requires, with certain limited exceptions, that the defendant be given access to such reports and afforded an opportunity to appear before the court to explain and defend adverse matters contained in these reports. I.C.R. 37 does not require the preparers of the reports to give the defendant a hearing in connection with the preparation of the reports submitted, and it is a mistake to impose that obligation on them.
As a practical matter, the majority’s decision may have nullified Ditmars. The majority concludes that the Board of Corrections must afford the defendant certain due process rights at the time the report and recommendations are prepared. If the defendant has a right to these procedural safeguards, then he must also have a right to judicial review of the procedures used to prepare his report, probably by the sentencing court. The majority recognizes this, see ante at 736, by referring to review under the Uniform Post Conviction Procedure Act, I.C. §§ 19 — 4901 to -4911. Thus, by this circuitous route, the majority now decides that a defendant can obtain the hearing and judicial review that the Court in Ditmars ruled he could not have. However, I take no consolation in the majority’s de facto nullification of Ditmars because in doing so the majority compounds the steps necessary to arrive at procedural due process. Traditionally, when courts have determined that a protected interest is involved, they have required a hearing before the entity which is acting to deprive the defendant of that interest. For example, Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), a case heavily relied upon by the majority, involved two individuals who had been convicted of crimes, sentenced to the Iowa State Penitentiary, but later paroled. The Iowa Board of Parole revoked their parole without granting them a hearing. In both instances, the board’s decision to revoke the parole was based upon reports submitted by parole officers. In Morrissey the United States Supreme Court held that due process required that the parolees be afforded a probable cause hearing and also a more expansive hearing before the Board of Parole, the entity which was empowered to revoke their parole. The Supreme Court did not require the parole officers, who submitted the reports forming the basis of the parole board’s revocations,' to conduct hearings in connection with the preparation of those reports. The majority opinion cites no authority for the proposition that the due process clause requires an agency which merely submits a report to afford the subject of the report a hearing in connection with the preparation of the report. It is obvious why such authority is lacking. In deciding a variety of matters courts often consider recommendations and evaluations prepared by various governmental agencies and other individuals. If a hearing on the matter is required, the logical and appropriate place to hold that hearing is before the court, the entity which makes the decision *394in the matter, and not before those who merely prepare reports and submit recommendations. I cannot concur in the principle of due process enunciated by the majority that the Board of Corrections must afford the defendant an array of procedural due process rights in the preparation of an evaluative report simply because the report often has a significant effect on the court’s decision. This misdirection in the development of procedural due process law is likely to lead to the situation in which the numerous individuals and agencies that submit reports for consideration by the courts are required in effect to hold a hearing in order to prepare such a report. Such situation would seriously cripple an agency’s ability to prepare a useful report and may undermine the value of that report to the courts.
But I also object to the principle of law stated by the majority on still another and more fundamental ground. In effect this Court is saying in Ditmars that the courts are not obliged to afford the defendant procedural due process when the courts decide whether to place the defendant on probation following a period of retained jurisdiction or to order execution of the sentence. Yet, in virtually the same breath, the majority in this case holds that the Board of Corrections must afford the defendant procedural due process when it prepares the report for the court. These cases smack of a double standard of due process — one for the courts, and a more stringent standard for the Board of Corrections — and will only supply substance for the cynicism with which many law enforcement agencies already view court decisions.
As the majority opinion indicates, judges often place “a great deal of trust in the report and the recommendations contained therein.” Ante at 733. Since they will be receiving only the board’s side of the evaluation of the defendant without allowing the defendant an opportunity to respond, the courts will tend simply to rubberstamp whatever the report recommends. Consequently, responsibility for making the decision will become increasingly blurred between the court, which has the lawful duty to make the decision, and the Board of Corrections, which as a practical matter will often make the decision. When a judge places a defendant in the custody of the Board of Corrections and retains jurisdiction for 120 days it is apparent that the judge believes that the defendant’s conduct during those 120 days may well indicate that he is a good candidate for probation. The decision following the period of retained jurisdiction whether to grant the defendant’s request for probation is of the utmost importance to the defendant. In my view the defendant, under our criminal justice system, has a right to have that decision made by the court, not the staff at the NICI. The duty to fix a defendant’s sentence and to hold hearings in that regard belongs to the courts, and that duty should remain in the courts. The duty for evaluating and disciplining prisoners belongs to the Board of Corrections, and it should be allowed to perform that duty without the burden of performing the courts’ hearing functions as well.
I recognize that my position, which would recognize that the defendant is entitled to a hearing before the court, may involve some additional cost because of the need to transport the defendant back to the sentencing court for the hearing. However, those costs would probably not be any greater than the costs necessitated by the majority’s approach. As the majority indicates, ante at 676, the defendant is entitled to challenge through the Uniform Post Conviction Procedure Act, I.C. §§ 19-4901 to —4911, the procedures by which the report was prepared. Proceedings under that Act are commenced in the district court where the defendant was convicted, I.C. § 19-4902, and in most cases will probably involve a hearing at which the defendant must be produced. See I.C. § 19-4907. So really nothing will have been gained by the Ditmars-Wolfe procedure, and in fact the whole process may be lengthened even more because of it. Additionally, the administrative burden on the Board of Corrections of complying with the majority’s opinion must also be considered.
*395However, a cost/benefit analysis cannot be the sole or even the primary consideration where procedural due process rights guaranteed by the Constitution are involved. The court’s decision following the period of retained jurisdiction is of critical importance to the defendant, and the defendant should not be denied the right to address the court concerning that decision and to rebut or explain adverse statements in the board’s report simply for administrative convenience or because that is thought to be the cheaper way to go. The sentencing court has a duty to make an independent judgment on the matter of probation — not merely to follow recommendations by the staff at the NICI because the court has no other information to consider. The presence of the defendant and his counsel when that decision is made is guaranteed by our Constitution and I.C.R. 32(a) and 43. Therefore I dissent from the majority’s action in this case which transfers that responsibility to another agency, an agency which I am sure will be no more pleased with having received it than the defendant will be in having it taken out of the courts.
. In Ditmars the Court presumed that the sentencing court suspends the execution of the sentence at the time the defendant is committed to the Board of Corrections under the retained jurisdiction procedure. In Ditmars the Court stated: “By retaining jurisdiction for 120' days pursuant to I.C. § 19-2601(4), the court then suspended the execution of the already imposed sentence.” 567 P.2d at 19. This reading of I.C. § 19-2601(4) is not technically accurate. Subsection (4) authorizes the court to “[sjuspend the execution of the judgment at any time during the first one hundred and twenty (120) days of a sentence . . . during which time the court shall retain jurisdiction over the defendant . .” I.C. § 19-2601(4). Thus, the sentence imposed is not automatically suspended at the time the defendant is initially committed for the 120 day period. Rather, the court merely retains jurisdiction to suspend the sentence at any time during the 120 day period, i. e., the defendant begins serving the sentence imposed at the time he is initially committed to the custody of the Board of Corrections, not at the expiration of the period of retained jurisdiction. However, this more accurate reading of I.C. § 19-2601(4) does not alter the fact that the final and critical decision concerning the defendant’s sentence and his request for probation is made at the end of the period of retained jurisdiction.
. 18 U.S.C. § 4205 (formerly § 4208) provides in part:
Ҥ 4205. TIME OF ELIGIBILITY FOR RELEASE ON PAROLE
“(c) If the court desires more detailed information as a basis for determining the sentence to be imposed, the court may commit the defendant to the custody of the Attorney General, which commitment shall be deemed to be for the maximum sentence of imprisonment prescribed by law, for a study as described in subsection (d) of this section. . After receiving such reports and recommendations, the court may in its discretion: (1) place the offender on probation as authorized by section 3651; or (2) affirm the sentence of imprisonment originally imposed, or reduce the sentence of imprisonment, and commit the offender under any applicable provision of law.”