dissenting:
29 I respectfully dissent. I believe that another statutory interpretation reflects both the intent of the legislature when it revoked the default presumption in consecutive/concurrent sentencing, and the true nature of probation.
I depart from the majority in its determination that probation constitutes a "sentence" being served within the meaning of the relevant statutes. Therefore, I conclude that the first court to execute a prison sentence for a defendant who is already incarcerated is the court that should determine whether its sentence is to run concurrent with or consecutive to the prison sentence already being served. In other words, where a defendant who, while on probation supervised by court A, commits another crime for which court B sentences him to prison, it should be court A that determines, when revoking probation, that the prison sentence thus executed will run consecutively to or concurrently with the prison sentence the defendant is already serving.
*999{31 This rule is the better-reasoned approach in my view because it is more consistent with the relevant statutory provisions relating to concurrent/consecutive sentencing and probation, and more adequately addresses policy and implementation concerns.
T32 Utah Code section 76-8-401(1)(b) (2008) provides,
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. The court shall state on the record and shall indicate in the order of judgment and commitment: ... if the sentences before the court are to run concurrently or consecutively with any other sentences the defendant is already serving.
In the context of this statute, "already serving" means a defendant who is serving a prison sentence and not a defendant who is on probation. Probation is defined in the statutes as "anm act of grace by the court suspending the imposition or execution of a convicted offender's sentence upon prescribed conditions." Utah Code Ann. § 77-27-1(10) (emphasis added). Probation is not a sentence that a defendant is already serving. The continuing jurisdiction of trial courts over defendants on probation supports this view. "The court has continuing jurisdiction over all probationers," Utah Code Ann. § 77-18-1(2)(b)(i}), and only loses jurisdiction over defendants when they are sentenced to prison. See State v. Anderson, 789 P.2d 27, 82 (Utah 1990) (Durham, C.J., concurring in the result) ("The trial court loses all jurisdiction over persons sentenced to prison."). Section 76-3-401(1)(b) makes clear, I believe, that the concurrent or consecutive determination should be made at the time an already-inear-cerated defendant is being sent to prison by another court.
133 This interpretation is also consistent with the policy set forth in section 76-3-401(2):
In determining whether state offenses are to run concurrently or consecutively, the court shall consider the gravity and circumstances of the offenses, the number of victims, and the history, character, and rehabilitative needs of the defendant.
The court that is considering executing a sentence previously imposed on an already-incarcerated defendant who has violated a probation order is the court with the most information regarding "the history, character, and rehabilitative needs of the defendant." Utah Code Ann. § 76-8-401(2). That and other information will be available in the defendant's record and Adult Probation and Parole reports, concerning all subsequent charges and sentences.
4 34 The majority's opinion limits a district court's ability, when deciding to revoke probation and send a defendant to prison, to fully consider the defendant's character, history, and rehabilitative efforts. It requires a less-informed district court that is sentencing on new charges, without the benefit of the probation revocation hearing and decision, to determine the practical effects of a defendant's sentence. This will essentially require one district court to speculate about another district court's potential actions in the probation review process.
11 35 In this case, the record does not show what information, if any, the court first incarcerating the defendant (in this case Judge Atherton) had regarding the history of Anderson's probation related to his previous conviction. I can foresee a scenario (although one hopes it would not occur) where a court disposing of new charges might even be unaware that a defendant is serving probation in another case when that court sentences the defendant to prison. In such a case, after the probationary court revokes probation and also sends the defendant to prison, the Board of Pardons would be required to request clarification from the court that was unaware of the defendant's prior crimes. See Utah Code Ann. § 76-3-401(4). In contrast, it is not at all likely that a court considering probation revocation for an already-incarcerated defendant would be unaware of a defendant's current incarceration and the reasons for it.
1 86 The majority's opinion is based in part on the language in Utah Code section 76-3-201(2)(c) that "a court may sentence a person convicted of an offense ... to probation." Despite this provision, I am aware of no *1000felony anywhere in the Utah Code that is punishable by probation; thus, the notion of probation as a "sentence" seems to me to be a stretch. I believe the more consistent statutory approach is to treat probation as "an act of grace by the court," as it is specifically defined in the law, and not as a sentence. Utah Code Ann. $ 77-27-1(10).
I 37 There is precedent for both the majority's and this dissent's approaches to coneur-rent and consecutive sentencing. The court of appeals has in the past embraced both approaches. Compare Bird v. State, 2000 UT App 209U, 2000 WL 33244128 (permitting the majority's approach) with State v. Workman, 2007 UT App 1990, 2007 WL 1649679 (permitting the dissent's approach). It would be helpful for the legislature to clarify Utah Code section 76-3-401 to address this issue. The decision in Bird illustrates the way in which the majority's approach requires a court to deal with a future, hypothetical action by another court. See Bird v. State, 2000 UT App 2090, para. 2, 2000 WL 83244128, at *1 ("[One judge] ordered the [sentence] terms to run consecutively to each other and to any [potential] sentence imposed by [the other judge] following probation revocation.").
138 I would affirm the court of appeals' decision in this case. The court that executes a prison sentence for a defendant who is already incarcerated should be the court to determine whether its sentence is to run concurrent with or consecutive to the previously executed sentence. That court is likely to have the most knowledge of the defendant and is in the best position to clarify for the Board of Pardons and Parole whether a sentence should run consecutively or concurrently. However, as is demonstrated by this case, the current statutory provisions support inconsistent interpretations. I would encourage the legislature to revisit Utah Code section 76-8-401 to clarify whether probation is intended to qualify as a "sentence already being served" within the meaning of subsection (1), and, when two or more trial courts have sentenced an individual, which of them should decide whether those sentences should run concurrent with or consecutive to one another.
1 89 Justice WILKINS concurs in Chief Justice DURHAM'S opinion.