Concurring Opinion
DeBruler, J.I concur fully in the majority opinion and add these remarks. The revocation of a suspended sentence is governed by I.C. 1971, 35-7-2-2, Burns § 9-2211, which reads:
“At the close of the probation period, or whenever directed to do so, by the court, the probation officer shall report to the court, with a statement of the conduct of the probationer while on probation. The court may thereafter discharge the probationer from probation, or may extend the probation period, as shall seem advisable. At any time within the probation period, the probation officer may arrest the probationer only upon warrant issued by the sentencing court. Thereupon, the probationer shall forthwith be taken before the court for hearing, where probationer may be represented by counsel of his choice. At any time within the maximum period for which the defendant might originally have been committed, but in no case to exceed five years, the court may issue a warrant and cause the defendant to be arrested and brought before the court. If it shall appear that the defendant has violated the terms of his probation or has been found guilty of having committed (mother offense, the court may revoke the probation or the suspension of sentence and may impose any sentence which might originally have been imposed.” (Emphasis added.)
*496The last sentence states there are only two grounds for the revocation, of a suspended sentence: (1) If the person has violated the terms of his probation, or, (2.) if he has been found guilty of having committed another offense.
It is undisputed that the prosecutor did not allege or prove that appellant had been found guilty of another offense. Therefore if appellant’s original sentence was to be ordered served it had to be on the grounds that appellant had violated the terms of his probation.
However, petitioner was never placed on probation and was never subject to any intelligible terms or conditions of probation. The status of being on probation is not the same as being free under a suspended sentence. This is clear from Davis v. State (1971), 256 Ind. 58, 267 N. E. 2d 63, where the petitioner was convicted on February 11, 1966, and sentenced to one to ten years in prison. Petitioner was placed on probation for only two years. Petitioner’s suspended sentence was revoked for an act occurring after his probationary term was up but within five years of his conviction. This was in accordance with § 9-2211 and proves conclusively that a convicted person may be serving a suspended sentence and not be on probation.
To place a convicted person on probation it is of course necessary to suspend his sentence; however, that alone does not create the status of probation. To place the person in the status of probation the trial court must set out some terms or conditions the person must comply with, which are intended to insure some form of supervisory control over the person. Suspending a sentence during “good behavior” does not place the person on probation within the meaning of § 9-2211 because there are not intelligible terms or conditions by which the convict may guide his behavior and no standards by which the State may judge that the probationary status should be revoked. A convicted person free under a suspended sentence *497but not on probation is not subject to supervisory control and his suspension can be revoked only if he has been found guilty of another offense. The whole tenor of § 9-2211 implies this distinction between being on probation and being free under a suspended sentence. Once this distinction is grasped then it is obvious that petitioner here was never on probation, never subject to probationary terms or conditions, and therefore his suspended sentence could not be revoked for a violation of probationary terms.