(dissenting):
18 In my view, Judge Reese lacked authority to order Defendant's sentences to run consecutively. Rather, Judge Reese could only execute the suspended prison sentence originally imposed for Defendant's theft conviction. Under the probation statute, see Utah Code Ann. § 77-18-1 (Supp.2006), the court imposing probation, in this case Judges Noel and Reese, has continuing jurisdiction *815over a defendant while on probation. See id. § T77-18-1(2)(b)(ii). However, onee the defendant's probation is revoked, such court is limited to executing the sentence previously imposed. See id. § 71-18-1(12)(0)@) ("If probation is revoked, ... the sentence previously imposed shall be executed."). As such, once Judge Reese revoked Defendant's probation, the statute granted him authority only to execute Defendant's previously imposed theft sentence. |
{19 Our recent decision in Salt Lake City v. Jaramillo, 2007 UT App 32, held that "once a defendant is sentenced and placed on probation, revocation of probation can result only in 'the sentence previously imposed [being] executed'" Id. at {12 (alteration in original) (quoting Utah Code Ann. § 77-18-1(12)(@)Gii). We then held that "the determination of whether two simultaneously imposed sentences are to be served concurrently or consecutively is to be made at the time of sentencing, and may not be made for the first time upon the revocation of probation." Id. at 116. While Jaramillo involved two misdemeanor convictions, the holding is in accordance with section 77-18-1(12)(e)@i) and is equally applicable to this case.1 Thus, I believe Judge Reese exceeded his authority when he imposed a sentence consecutive to a sentence for crimes that had not been committed when Defendant was originally sentenced, rather than executing Defendant's previously imposed theft sentence.
T 20 Secondly, I disagree with the logic of the majority opinion respecting the effect of the authority of the trial judges in this case as well as the analysis of the seope of that authority.
{21 In a nutshell, the majority reasons that if Judge Atherton could not have imposed the robbery sentences concurrently or consecutively to the theft sentence, it follows that Judge Reese must have possessed that authority, notwithstanding the provisions of section 77-18-1(12)(e)(iii). See Utah Code Ann. § 77-18-1(12)(e)(ii). To reach this conclusion, it became necessary for the majority to find a way to rule that the theft sentence could not have been considered when imposing the subsequent aggravated robbery sentences. At this point, it is important to note that the record before us reveals only that Judge Atherton sentenced Anderson to two terms in the Utah state prison, those sentences to run concurrently with one another. The record does not reveal whether Judge Atherton was even aware of the theft sentence, let alone whether she took the same into consideration one way or another.2 Judge Atherton's case, in particular the propriety of her sentences, is not before us.
1 22 Next, in order to relieve Judge Ather-ton of authority to consider the theft sentence, the majority opines that the theft sentence is not cognizable under section 76-3-401 of the Utah Code because the phrase "any other sentence the defendant is already serving," Utah Code Ann. § 76-3-401(1)(b) (2003), means a sentence served in jail or prison. In my view, probation is a sentence within the meaning of section 76-3-401(1)(b), and is still a sentence being served even *816though that service may occur outside of jail or prison. Probation is defined in the Utah Code as "an act of grace by the court suspending the imposition or execution of a con-viected offender's sentence upon prescribed conditions." Id. § 77-27-1(10) (2003). Under the Utah Criminal Code, a court may sentence an offender to, among other things, imprisonment, probation, or both. See Utah Code Ann. § 76-3-201(2) (Supp.2006) (stating "a court may sentence a person convicted of an offense to any one of the following sentences or combination of them: ... (c) to probation unless otherwise specifically provided by law ... [or] (d) to imprisonment"). Similarly, federal law also treats probation as a sentence. See 18 U.S.C. § 8561 (2000) ("A. defendant who has been found guilty of an offense may be sentenced to a term of probation ...." (emphasis added)); see also United States v. Granderson, 511 U.S. 39, 43 n. 3, 114 S.Ct. 1259, 127 L.Ed.2d 611 (1994) (discussing the Sentencing Reform Act of 1984, which "classified probation as a sentence"); United States v. Mueller, 463 F.3d 887, 889 (Ith Cir.2006) (stating "instead of representing the suspension of the execution of a sentence, probation constitutes a type of sentence in and of itself").
123 Moreover, probation is commonly understood to be a sentence, see Black's Law Dictionary 1220 (7th ed.1999) (defining probation as a "court-imposed criminal sentence"), or the equivalent of a sentence, cf. Smith v. Cook, 803 P.2d 788, 798 (Utah 1990) ("[It is unnecessary to determine whether a person who has been placed on probation incurs the punishment set out in the sentence prior to the time probation is revoked, because it is clear that simply by being placed on probation, punishment is incurred."). Additionally, in several contexts, a sentence of probation is handled consistently with a sentence of incarceration. See, eg., Utah R.Crim. P. 27(a)(2) (stating that "[a] sentence of fine, imprisonment, or probation shall be stayed if an appeal is taken"). Since probation is a sentence that Defendant is already serving, Judge Atherton could have considered the theft conviction when sentencing Defendant for his aggravated robbery convictions. While I believe that Judge Atherton had the authority to rely on the theft convietion when determining whether the aggravated robbery sentences should run concurrently or consecutively to the theft sentence, it is inappropriate for us to opine in this case that Judge Atherton "correctly ordered" Defendant's aggravated robbery sentences to run concurrently to one another "without referencing" his theft sentence.
124 The majority's definition of "already serving" may often lead to illogical results. For example, under the majority's view, a sentence that includes jail time as a condition of probation would implicate section 76-3-401(1)(b), but a sentence of probation with other conditions would not. It makes no sense that the almost infinite variations of probation would not implicate section 76-3-401(1)(b), while a sentence for the same crime that does include some form of incarceration would implicate the statute. Thus, under the majority approach, it is difficult to know under just what cireumstances section 76-3-401(1)(b) would be implicated: A sentence that includes community service? A sentence of confinement with work release? A sentence of confinement to jail and not the Utah state prison? Furthermore, the majority misapplies one of our canons of statutory interpretation when it claims that "[in the balance of the statute 'served' means incarcerated." (quoting Utah Code Ann. § 76-3-401(1)(b)). I agree that when "reading the language of an act, ... we seek to render all parts [of the statute] relevant and meaningful, and we therefore presume the legislature use[d] each term advisedly and ... according to its ordinary meaning." State v. Bradshaw, 2004 UT App 298, ¶ 9, 99 P.3d 359 (alterations and second omission in original) (quotations and citation omitted), rev'd on other grounds, 2006 UT 87, 152 P.3d 288. However, it does not follow that the term "serving" ordinarily means incarcerated. If the legislature intended section 76-3-401(1)(b) to apply only if a defendant was already imprisoned, it could have easily stated as much.
Finally, in a further effort to support its theory of the case, the majority, showing commendable concern for its perceived plight of the trial courts, speculates about "potential implementation problems" created by inter*817preting section 76-8-401(1)(b) "to authorize a court to impose a concurrent or consecutive sentence to a suspended sentence." However, nothing in the record refers to any difficulty which may be encountered when determining how much time a defendant should serve. For example, the Board of Pardons has the authority to determine when felons can be released and does not need guidance from this court. See Utah Code Ann. § 77-27-5(1) (§upp.2006) ("The Board of Pardons and Parole shall determine by majority decision when and under what conditions ... persons committed to serve sentences in class A misdemeanor cases ... and all felony cases ... may be released upon parole. ...").
T26 In sum, I believe that Judge Reese had no authority to order Defendant's theft sentence to run consecutively to the sentences for Defendant's subsequent aggravated robbery convictions. Defendant's probation constituted a sentence, which would have allowed Judge Atherton to consider his theft conviction when determining whether Defendant's aggravated robbery sentences should run concurrently or consecutively to the theft conviction. Finally, I do not adhere to the majority's gratuitous discussion of the propriety of Judge Atherton's actions and its unnecessary discussion of "potential implementation problems."
. While the circumstances in Salt Lake City v. Jaramillo, 2007 UT App 32, vary from the instant case, our holding in Jaramillo is also applicable here because it relied on section 76-3-401 of the Utah Code, see Utah Code Ann. § 76-3-401 (2003), in order to promote consistency in sentencing. The majority attempts to distinguish Jaramillo by relying on the assertion, unsupported by the record, that Judge Atherton could not consider section 76-3-401; and then argues that a different subsection of 76-3-401 applied to that case. According to the majority, section 76-3-401(1)(a) governs situations-as in Jaramillo-"where sentences are to be imposed for two or more charges at the same hearing," and section 76-3-401(1)(b) governs situations-as in the instant maiter-''where sentences are imposed in different cases by different judges at different times." Those subsections have nothing to do with the substance of the statute, which is that "[a]) court shall determine, if a defendant has been adjudged guilty of more than one felony offense, whether to impose concurrent or consecutive sentences for the offenses." Utah Code Ann. § 76-3-401(1). Rather, subsections (a) and (b) are merely descriptive of the circumstances under which the statute may be implicated and do not serve to distinguish Jaramillo one way or another.
. The majority underscores the problem with opining on the propriety of Judge Atherton's actions by speculating, with no record support whatsoever, about what a presentence investigation report "typically" includes, and further speculating that it was "likely"" that Judge Ather-ton had knowledge of Defendant's theft sentence.