(concurring in part and dissenting in part).
{13} I concur with the majority in reversing the order revoking probation and imposing sentence in CR 99-502. I dissent from the majority opinion affirming the district court’s order revoking probation and imposing sentence in CR 99-500.
{14} The judgment and order suspending sentence specifically states that the sentence in CR 99-500 “shall be served consecutive” to the sentence in CR 99-502. It is undisputed that Defendant did not complete his sentence in CR 99-502 until September 9, 2004, and that Defendant did not commence serving his sentence under CR 99-500 until September 10, 2004. The petition to revoke probation was filed on June 9, 2004, alleging various probation violations occurring in 2003 and early 2004. Thus, the petition to revoke probation was filed before Defendant even began serving his sentence under CR 99-500. The majority nevertheless concludes that Defendant’s probation was properly revoked on the basis of actions which occurred before Defendant’s sentence commenced. I disagree with this conclusion for three reasons.
{15} First, it is horn book law that in order to revoke probation, a violation of probation must be established. “In determining whether there is a violation, we look to the trial court’s order.” State v. Martinez, 84 N.M. 295, 296, 502 P.2d 320, 321 (Ct.App.1972). It is also settled that a hearing to revoke probation is to determine “‘whether the conduct of the defendant during the probation period has conformed to the course outlined in the order of probation.’ ” State v. Brusenhan, 78 N.M. 764, 766, 438 P.2d 174, 176 (Ct.App.1968) (quoting Sparks v. State, 77 Ga.App. 22, 47 S.E.2d 678, 680 (1948) (emphasis added)). Here, the alleged violations occurred before the judgment and sentence imposing probation was even in effect.
{16} Each of the cases relied upon by the majority are distinguishable and therefore not applicable. In Padilla, the defendant was sentenced to serve two concurrent sentences of three years, and two years and one day of each sentence was suspended. The defendant was actually serving the prison sentence when he escaped from custody. 106 N.M. at 421, 744 P.2d at 549. We held that the probation of a defendant who commits a probation violation while still serving the custodial portion of his sentence may be revoked. Id. at 422, 744 P.2d at 550. Similarly, in Martinez, the defendant violated conditions of probation while he was serving his parole. 108 N.M. at 606, 775 P.2d at 1323. Following Padilla, we concluded that the district court had jurisdiction to revoke the defendant’s probation. Martinez, 108 N.M. at 607, 775 P.2d at 1324. Finally, in Rivera, the defendant committed a probation violation while serving his sentence and his appeal was pending. 2004-NMSC-001, ¶¶ 2-4, 134 N.M. 768, 82 P.3d 939. Following Martinez and Padilla, our Supreme Court held that the district court had jurisdiction to revoke the defendant’s probation notwithstanding the appeal. Rivera, 2004-NMSC-001, ¶¶ 21, 27, 134 N.M. 768, 82 P.3d 939.
{17} The fact which distinguishes Martinez, Padilla, and Rivera is that in each of those eases the defendant was serving his sentence when he committed the probation violation. In this case, there were no conditions of probations to violate because the sentence to which the probation violations attached had not yet commenced.
{18} Second, the net effect of the majority opinion is to allow an amendment to the judgment and sentence and conditions of probation in CR 99-500. Specifically, the amendment is that before commencing his sentence in CR 99-500, a condition of probation in CR 99-500 is that he not commit any violations of probation in CR 99-502. Even if such a condition could have been originally imposed, it is well established that once a valid original judgment and sentence is entered, it cannot be amended to add conditions of probation because this results in an increased penalty. See Martinez, 84 N.M. at 296, 502 P.2d at 321; State v. Soria, 82 N.M. 509, 511, 484 P.2d 351, 353 (Ct.App.1971).
{19} Finally, I also disagree with the majority in its assertion at paragraph 8 that Defendant had no contract with the State. Specifically, Defendant was given consecutive judgments with conditions attached to each. Defendant could not violate the order of probation in CR 99-500 because he had not yet commenced serving his sentence. The State was allowed to breach its contract with Defendant by changing the effective date of his sentence in CR 99-500. I cannot agree with the majority that this is consistent with due process.
{20} I therefore dissent from the majority opinion to the extent it affirms the district court order revoking probation and imposing sentence in CR 99-500.