DISSENTING OPINION BY
JUSTICE STUMBORespectfully, I dissent. While this case raises novel questions of waiver and estoppel, I believe that the fundamental reasoning of Curtsinger remains sound. In Kentucky, “[t]he power to grant probation is not inherent in the courts but is conferred by the legislature.” Haymon v. Commonwealth, Ky., 657 S.W.2d 239, 241 (1983) (Wintersheimer, J., dissenting). As a result, there should be strict compliance with the statutory provisions.
Under Kentucky’s statutory scheme, the term of probation for a felony is clearly limited. “Such period [of probation], with extensions thereof, shall not exceed five (5) years_” KRS 533.020(4) (emphasis added). Although KRS 533.020(3) grants a court limited power to extend the period if the initial term is less than five years, under no circumstances should an extension continue past the unambiguous five-year maximum contained in KRS 533.020(4). Once the probationary period expires, a trial court has no discretion in the matter; the defendant “shall be deemed finally discharged.” KRS 533.020(4) (emphasis added).
In my opinion, it matters not that a purported extension comes through an act of the defendant, the judge, or by agreement of the parties; indeed, the statute creating probation makes no such distinction. Any extension past the five-year limit contravenes legislative policy on probation, contained in the Commentary to KRS 533.040:
If probation is to work, it will generally do so within a relatively short period of time, long before the maximum of 5 years permitted for felonies.... No purpose would seem to be served by permitting courts to pile on consecutive periods of probation and thereby extend the term to 10, or even 15, years_ 2 Working Papers of the National Commission on Reform of Criminal Laws 1311 (1970).
I fail to see any distinction between a probationary period that continues for more than five years due to consecutive sentencing and a probationary period that stretches past five years due to waiver, estoppel, or agreement of the parties. Both have the same effect, extending the period of probation indefinitely, despite an unambiguous statutory limit.
Although the majority in the instant ease relies heavily on the noble aim of protecting the defendant’s interests, it ignores the practical realities of the situation that arises when a defendant violates the terms of his probation. From this point forward, when*293ever a defendant commits a probation violation, the Commonwealth will “offer” to either extend his probation, perhaps with additional terms, or send him to prison. No defendant in his right mind, when faced with this Hob-son’s choice, would choose imprisonment. By allowing a defendant to waive the limit contained in KRS 533.020, we have effectively written the five-year limit out of the statute.
Citing these and other concerns, jurisdictions with similar statutory schemes have invalidated extensions of probation beyond a statutorily prescribed time limit even when granted with the defendant’s consent or upon a defendant’s request. See, e.g., United States v. Rodriguez, 682 F.2d 827 (9th Cir.1982); Carter v. State, 516 So.2d 331 (Fla.Dist.Ct.App.1987); Hoage v. State, 479 N.E.2d 1362 (Ind.Ct.App.1985); State v. Grimsley, 15 Kan.App.2d 441, 808 P.2d 1387 (1991); Kupfer v. State, 287 Md. 540, 414 A.2d 907 (1980); State v. Duncan, 15 Or.App. 101, 514 P.2d 1367 (1973). Unlike those decisions, the result reached by the majority today invites much of the mischief that the statutory limit is designed to prevent. If a defendant violates the terms of a five-year probationary period, then, pursuant to the statutory scheme, the proper remedy is incarceration, not an extension. See KRS 533.020(3). I would affirm the judgment of the Court of Appeals.
LAMBERT, J., joins.