State v. Anderson

1 The legislature amended Title 76 of the Utah Code in 2008.
Because there were no substantive changes made to section 76-3-
401, we cite to the 2008 version.
2009 UT 13
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah, 	No. 20070328
Plaintiff and Respondent,
v.
F I L E D
David Scott Anderson,
Defendant and Petitioner. 	February 17, 2009
---
Third District, Salt Lake
The Honorable Robin W. Reese
No. 031900326
Attorneys: 	Mark L. Shurtleff, Att’y Gen., J. Frederic Voros,
Jr., Matthew D. Bates, Asst. Att’ys Gen., Salt Lake
City, for plaintiff
Joan C. Watt, Debra M. Nelson, C. Bevan Corry, Salt
Lake City, for defendant
---
On Certiorari to the Utah Court of Appeals
NEHRING, Justice:
INTRODUCTION
¶1 	In this case, we consider whether the court of appeals
correctly construed Utah Code section 76-3-401, 1 which governs
the imposition of concurrent or consecutive sentences. 	David
Scott Anderson, the defendant in this case, pled guilty to theft.
A district court judge placed Mr. Anderson on probation, staying
the prison sentence of zero to five years. 	A year later, after
being convicted of two counts of aggravated robbery while on
probation, a second judge sentenced Mr. Anderson to two

No. 20070328 	2
concurrent indeterminate terms of not less than six years. 	This
judge did not address Mr. Anderson’s earlier theft sentence.
Later, a third judge, who had replaced the first judge who
imposed Mr. Anderson’s theft sentence, revoked Mr. Anderson’s
probation for theft and committed him to prison. 	The third judge
determined that the prison commitment for the theft sentence was
to run consecutively to the prison commitment for the aggravated
robberies, which Mr. Anderson was then serving. 	Mr. Anderson
appealed. 	He claimed that the third judge lacked the authority
to impose a consecutive sentence because such a determination was
not authorized by law. 	Mr. Anderson contended further that the
second judge who sentenced him for his robbery offenses was the
only judge who had the authority to decide whether to impose
concurrent or consecutive sentences relating to the earlier theft
conviction. 	The court of appeals found no error in the
sentencing and affirmed. 	We reverse the court of appeals’
decision and vacate Mr. Anderson’s consecutive sentence as
ordered by the third judge.
BACKGROUND
¶2 	On December 4, 2003, David Scott Anderson pled guilty
to one third degree felony count of theft. 	The district court
judge imposed a sentence under Utah’s indeterminate sentencing of
zero to five years in prison. 	The judge suspended the prison
commitment and placed Mr. Anderson on probation for eighteen
months.
¶3 	Several months later while on probation for theft, Mr.
Anderson pled guilty to two first degree felony counts of
aggravated robbery. 	A second judge sentenced Mr. Anderson to two
indeterminate terms of not less than six years in prison on each
count. 	The second judge ordered the sentences to run concurrent
with one another but made no mention of whether these sentences
would run concurrent or consecutive to Mr. Anderson’s earlier
theft sentence.
¶4 	During this time, Adult Probation and Parole filed an
affidavit and an Order to Show Cause with a third judge, who had
replaced the first judge who had sentenced Mr. Anderson for
theft, which stated that Mr. Anderson’s probation should be
revoked. 	The affidavit averred that Mr. Anderson had been
convicted of two first degree felony counts of aggravated robbery
and would soon be sentenced for those offenses. 	Several months
after the second judge sentenced Mr. Anderson for his crimes of
aggravated robbery, the third judge revoked Mr. Anderson’s
probation and executed the suspended sentence of zero to five
years in prison. 	The third judge also ordered that the executed

2 The legislature renumbered Utah Code section 78A-3-102 in
2008. 	This section was previously numbered as 78-2-2. 	No
substantive changes were made, and we therefore cite to the newly
renumbered section.
3 	No. 20070328
theft sentence run consecutive to the aggravated robbery
sentences. 	Mr. Anderson challenged this ruling on appeal.
¶5 	A divided panel of the court of appeals affirmed.
State v. Anderson, 2007 UT App 68, ¶¶ 15-16, 157 P.3d 809. 	The
court of appeals’ majority held that the term “served,” as used
in Utah Code section 76-3-401, described the authority of a court
to impose concurrent or consecutive sentences for a defendant who
at the time of sentencing is “already serving” a sentence. 	Id.
¶ 9. 	The majority held that “served means incarcerated” and that
a defendant who is on probation at the time of being sentenced
for a new offense is not serving a sentence for the earlier
crime. 	Id. ¶ 7. 	The court of appeals further held, “Reading the
statute as a whole, we conclude that section 76-3-401(1)(b) does
not authorize a court to order a sentence concurrent or
consecutive to another sentence that has not yet been both
imposed and executed.” 	Id. ¶ 11. 	We granted certiorari review
pursuant to our jurisdiction under Utah Code section 78A-3-102(5)
(2008). 2
STANDARD OF REVIEW
¶6 	“On certiorari, we review the decision of the court of
appeals and not that of the district court.” 	State v. Brake,
2004 UT 95, ¶ 11, 103 P.3d 699. 	Because the issue before us is
purely one of statutory interpretation, “[w]e conduct [our]
review for correctness, ceding no deference to the court of
appeals.” 	Id. 	In our review of the court of appeals’ decision,
we examine the standard of review it applied to the district
court’s ruling. 	Id. 	The court of appeals appropriately used the
correctness standard when it reviewed the underlying issue of
statutory interpretation. 	State v. Anderson, 2007 UT App 68,
¶ 4, 157 P.3d 809.
ANALYSIS
¶7 	The majority of the court of appeals held that
probation does not fall within the definition of a sentence being
served as meant by the phrase “‘any other sentences the defendant
is already serving.’” 	State v. Anderson, 2007 UT App 68, ¶ 15,
157 P.3d 809 (quoting Utah Code Ann. § 76-3-401(1)(b) (2003)).
Under the court of appeals’ interpretation, a judge sentencing a
defendant cannot determine consecutive or concurrent sentencing

3 The legislature amended section 77-18-1 in 2008. 	The
subsections referenced in this opinion, however, remain unchanged
from the 2003 version in effect during the time Mr. Anderson
committed his crimes. 	We therefore cite to the 2008 version.
No. 20070328 	4
in relation to a suspended sentence for which the defendant is
currently serving probation. 	In contrast, we find that a clear
statutory mandate limits the authority of a judge, who placed a
defendant on probation after suspension of a prison sentence, to
execute only the suspended sentence upon revocation of the
defendant’s probation. 	See Utah Code Ann. § 77-18-1(12)(e)(iii)
(2008). 3 	That judge does not have the authority to make a later
concurrent or consecutive ruling. 	Salt Lake City v. Jaramillo,
2007 UT App 32, ¶ 16, 156 P.3d 839.
¶8 	We agree with the dissenting judge of the court of
appeals and hold that probation is a sentence that a defendant
serves as used in section 76-3-401(1)(b).
I. 	THE THIRD JUDGE DID NOT HAVE THE AUTHORITY TO MAKE A
CONSECUTIVE OR CONCURRENT SENTENCING DETERMINATION
¶9 	The determination to run Mr. Anderson’s previously
suspended theft sentence consecutive to the sentences imposed and
executed by the second judge was beyond the third judge’s
authority. 	Once probation has been revoked, a district court
judge has the authority to execute only the previously imposed
sentence. 	Utah Code Ann. § 77-18-1(12)(e)(iii) (2008) (“If
probation is revoked, . . . the sentence previously imposed shall
be executed.”); see also Salt Lake City v. Jaramillo, 2007 UT App
32, ¶ 12, 156 P.3d 839 (“[O]nce a defendant is sentenced and
placed on probation, revocation of probation can result only in
the sentence previously imposed [being] executed.” (second
alteration in original) (internal quotation marks omitted)).
After revoking Mr. Anderson’s probation, the third judge had
jurisdiction to execute only the previously imposed sentence of
zero to five years. 	See Utah Code Ann. § 77-18-1(2)(b)(iii),
(12)(e)(iii).
¶10 	The third judge overstepped his authority when he
determined that the sentence for theft was to run consecutively
to the sentences for the two counts of aggravated robbery. 	In
view of this clear limited grant of authority, we are puzzled by
the court of appeals’ pronouncement that “the circumstances
presented to Judge Reese [the third judge] required him to make
the concurrent/consecutive determination at the probation
revocation hearing in which he sought to impose and execute the
previously suspended sentence.” 	State v. Anderson, 2007 UT App

4 We recognize that the court of appeals in this case
attempted to differentiate section 76-3-401(1)(a), which deals
with simultaneously imposed sentences, from section 76-3-
401(1)(b), which deals with previously imposed sentences. 	The
court of appeals held that under subsection (b) determinations of
concurrent or consecutive sentencing could be made at a later
date rather than being indicated in the final order. 	The court
of appeals was mistaken on this matter. 	Rather, as was argued by
the court of appeals’ dissent, both “subsections (a) and (b) are
merely descriptive of the circumstances under which the statute
may be implicated.” 	Anderson, 2007 UT App 68, ¶ 19 n.1 (Davis,
J., dissenting).
5 	No. 20070328
68, ¶ 14, 157 P.3d 809 (emphasis added). 	Whether the third judge
could make the concurrent or consecutive determination is a
question that at least merits debate. 	That the third judge was
required to make that determination merits no discussion. 	He was
not. 	The only authority that the third judge possessed was to
execute the first judge’s sentence. 	Utah Code Ann. § 77-18-
1(12)(e)(iii). 	The court of appeals held in Jaramillo that the
concurrent or consecutive determination cannot be made for the
first time at a probation revocation hearing. 	2007 UT App 32,
¶ 16. 	In Jaramillo, the court of appeals analyzed when the
determination of concurrent or consecutive sentencing should be
made. 	Id. ¶ 13. 	The court inquired “whether the determination
of concurrent or consecutive terms of incarceration is a function
of the sentence itself, which must be imposed prior to probation,
or is merely a function of the execution of the sentence.” 	Id.
¶11 	The Jaramillo court was faced with the issue of a
district court judge imposing consecutive sentencing for
simultaneously imposed sentences at the time of probation
revocation. 	The court held that under section 76-3-401(1) “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. ¶ 16. 	We agree with this
holding and hold that section 76-3-401(1) applies not only to
simultaneously imposed sentences but also to “sentences the
defendant is already serving,” Utah Code Ann. § 76-3-401(1)(b). 4
¶12 	Because Mr. Anderson was convicted for only one count
of theft, there was no need for the first judge to make a
concurrent or consecutive sentencing determination when he
imposed the sentence. 	The third judge, therefore, was limited to
executing only the previously imposed sentence. 	It is
inappropriate for a judge to make a concurrent or consecutive

5 Under Utah Code section 76-3-401(1), the district court
when imposing concurrent or consecutive sentences must state its
determination “on the record and . . . indicate [the
determination] in the order of judgment and commitment.” 	By
requiring concurrent or consecutive sentencing determinations to
be made at the time of the final judgment, a defendant also
receives finality of judgment and can then appeal if he chooses
to do so. 	See State v. Bowers, 2002 UT 100, ¶ 4, 57 P.3d 1065
(“In a criminal case, it is the sentence itself which constitutes
a final judgment from which [the] appellant has the right to
appeal.” (emphasis in original) (internal quotation marks
omitted)).
No. 20070328 	6
sentencing determination based on future crimes that were not
committed at the time the sentence was imposed.
II. 	THE SECOND JUDGE WHO SENTENCED MR. ANDERSON FOR HIS
AGGRAVATED ROBBERY CONVICTIONS WAS THE ONLY JUDGE WITH STATUTORY
AUTHORITY TO DETERMINE CONCURRENT OR CONSECUTIVE SENTENCING FOR
THE PREVIOUSLY IMPOSED THEFT SENTENCE
¶13 	Pursuant to Utah Code section 76-3-401(1) (2008), the
decision whether sentences are to be served concurrently or
consecutively is to be made at the time of final judgment. 5 	The
legislature has not empowered judges to make this determination
at any other time. 	The second judge, therefore, was in the best
position to decide concurrent or consecutive sentencing. 	We do
not agree with the majority of the court of appeals’ decision in
this case, which held that the third judge was the appropriate
judge to determine this issue. 	State v. Anderson, 2007 UT App
68, ¶ 16, 157 P.3d 809. 	That court reached its decision by
interpreting the phrase “any other sentences the defendant is
already serving” that appears in section 76-3-401(1)(b) “to
exclude . . . time spent while on probation [as] consistent with
the legislature’s use of the verb ‘served’ throughout the
statute.” 	Id. ¶ 7 (quoting Utah Code Ann. § 76-3-401(1)(b)
(2003)). 	In contrast, the dissenting judge concluded that
“probation is a sentence within the meaning of section 76-3-
401(1)(b)[] and is still a sentence being served even though that
service may occur outside of jail or prison.” 	Id. ¶ 22 (Davis,
J., dissenting).
¶14 	For reasons we will speak of shortly, we conclude that
probation is a sentence and therefore the second judge had the
authority pursuant to section 76-3-401(1) to have considered Mr.
Anderson’s earlier conviction when determining whether the
aggravated robbery sentences ought to be concurrent or
consecutive to the theft sentence.

6 Utah is not alone in this. 	Federal law states that a
defendant “may be sentenced to a term of probation.” 	18 U.S.C.
§ 3561 (2000); see also United States v. Granderson, 511 U.S. 39,
43 n.3 (1994) (noting how the Sentencing Reform Act of 1984
classified probation as a sentence); United States v. Mueller,
463 F.3d 887, 889 (9th Cir. 2006) (“[P]robation constitutes a
type of sentence in and of itself.”). 	Additionally, Black’s Law
Dictionary defines probation as “a court imposed criminal
sentence.” 	1240 (8th ed. 2004).
7 The legislature amended section 76-3-201 in 2008.
Subsection (2), however, was unchanged from the 2003 version in
effect during the time Mr. Anderson committed his crimes. 	We
therefore cite to the 2008 version.
8 Section 77-18-1(12)(e)(iii) also states that if probation
is revoked, the judge may sentence the defendant. 	This situation
would only occur if the defendant had been previously sentenced
to probation and there had been no suspension of a prison
sentence. 	This issue, however, is not before us.
7 	No. 20070328
A. 	Probation Is Both a Sentence and a Court-Appointed Placement
After the Suspension of a Harsher Sentence
¶15 	Probation has two roles under Utah law. 	It is both a
sentence and an alternative sanction to be imposed after the
suspension of a harsher sentence. 	First, since 1973, Utah law
has stated that probation is a sentence. 	Section 76-3-201(2)
states that “a court may sentence a person convicted of an
offense to . . . probation.” 6 	Utah Code Ann. § 76-3-201(2)
(2008). 7 	Second, section 77-27-1(10) defines probation as “an
act of grace by the court suspending the imposition or execution
of a convicted offender’s sentence upon prescribed conditions.”
Id. § 77-27-1(10). 	Additionally, section 77-18-1(2)(a) states
that “the court may, after imposing sentence, suspend the
execution of the sentence and place the defendant on probation.”
Id. § 77-18-1(2)(a). 	If a violation of the probationary
conditions occurs, the court “may order the probation revoked,
modified, continued, or that the entire probation term commence
anew.” 	Id. § 77-18-1(12)(e)(ii). 	As discussed above, if a judge
revokes probation, she may only execute the previously imposed
suspended sentence. 	Id. § 77-18-1(12)(e)(iii). 8 	Thus, probation
is a sentence in its own right. 	The more challenging question is
whether, in the context of section 76-3-401(1)(b), probation is a
sentence that a defendant “serves” or whether a defendant may
only “serve” a sentence while in confinement.

No. 20070328 	8
B. 	Probation Is a Sentence for the Purpose of Interpreting the
Phrase “Any Other Sentences the Defendant Is Already Serving”
¶16 	The court of appeals interpreted Utah Code section 76-
3-401(1)(b) to exclude probation based on the view that the
legislature used “served” throughout the statute only in
reference to incarceration. 	See Anderson, 2007 UT App 68, ¶ 7.
The court of appeals’ dissent employed the same principles of
statutory construction as the majority, but reached the opposite
result. 	The dissent noted 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.’” 	Id. ¶ 24 (Davis, J., dissenting) (quoting State v.
Bradshaw, 2004 UT App 298, ¶ 9, 99 P.3d 359 (alterations in the
original), rev’d on other grounds, 2006 UT 87, 152 P.2d 288).
The court of appeals’ dissent, however, did not conclude that the
ordinary meaning of the term “serving” was limited to
incarceration. 	Id. 	Instead, it concluded that “[i]f 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.” 	Id.
¶17 	We disagree with the majority’s textual analysis of
section 76-3-401. 	The majority concluded that the term “served”
consistently and exclusively means “incarcerated” when used in
section 76-3-401. 	The majority makes its case for this
proposition with sufficient persuasiveness that it cannot be
dismissed out of hand. 	It is an argument, however, that rejects
the premise that probation is a sentence that can be served.
Above we have explained why probation is a sentence and why a
defendant, whose liberty is constrained by the terms of
probation, is serving a sentence. 	While it is true that when
“served” is used in section 76-3-401 the word may be construed to
mean incarcerated, its use also suggests that it may include
probation. 	“Serve” or a variation of it appears five times in
section 76-3-401. 	That “served” means “incarcerated” in section
76-3-401(10) is only apparent because of the modifier “actually.”
Section 76-3-401(10) states in reference to the thirty-year cap
on consecutive sentences, that the cap is intended “only to limit
the length of sentences actually served under the commitments.”
Id. 	Here, “served” obviously means incarcerated. 	This is made
clear by the presence of the modifier “actually.” 	This
subsection does not apply to commitments that are not “actually
served.” 	This language means that there exists a category in
sentences that are “served,” but not “actually served.” 	If
“actually served” means incarcerated, a sentence that is served
but not actually served must mean a sentence that is served by
means other than incarceration.

9 	No. 20070328
¶18 	Having demonstrated that section 76-3-401 does not use
“serve” in a manner that limits its definition to incarceration,
we turn to the second component of the majority opinion’s
argument: 	the impracticality of including probation within the
definition of sentences a defendant is already serving. 	We again
conclude that the court of appeals’ dissent presents the better
case when it articulates the practical difficulties created by
the majority’s interpretation. 	For example, the court of
appeals’ dissent correctly points out that
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. . . . 	Thus,
under the majority approach, it is difficult
to know under just what circumstances 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?
Anderson, 2007 UT App 68, ¶ 24 (Davis, J., dissenting).
¶19 	Moreover, under the majority’s interpretation, a
defendant who had served jail time as a condition of probation
would not be implicated under section 76-3-401(1)(b) because in
its view “already serving” means incarcerated at the time the
concurrent or consecutive determination is made.
¶20 	The court of appeals’ majority also held that section
76-3-401 would be internally inconsistent if subsection (1)(b)
were to treat suspended sentences as “sentences the defendant is
already serving.” 	Utah Code Ann. § 76-3-401(1)(b). 	The majority
opinion does not elaborate on the nature of the supposed
inconsistency but rather turns to surmising what language the
legislature would have used to communicate a clear intent to
include sentences of probation as sentences capable of being
“already served.” 	It remains unclear to us how the treatment of
probation as a sentence included within the “already serving”
language of section 76-3-401(1)(b) renders the rest of section
76-3-401 internally inconsistent, nor how such an inconsistency,
if present, would alter the purpose and application of the
section.
¶21 	Thus we hold that probation is a sentence and that it
is applicable to the phrase “any other sentences the defendant is

9 We mention only briefly the State’s argument that once a
probation violation report is filed, the defendant is no longer
on probation. 	The State bases this argument on section 77-18-
1(11)(b) which states that “[t]he running of the probation period
is tolled upon the filing of a violation report . . . .” 	Utah
Code Ann. § 77-18-1(11)(b). 	The State’s argument that a
defendant is no longer serving probation or any sentence during
this period leads to the illogical result that once a violation
report is filed, the defendant is free of any state constraints.
It seems to us that, while the probation period is tolled between
the filing of a violation report and the issuance of an order to
show cause, the defendant is still subject to the conditions
imposed by his probation and hence on probation. 	The only
difference is that the time may or may not count toward
completion of his sentence of probation.
No. 20070328 	10
already serving” as found in section 76-3-401(1)(b). 9 	As a
result, the second judge was in the correct position to determine
whether the two counts of aggravated robbery for which she
sentenced Mr. Anderson were to run concurrently or consecutively
to the sentence for theft.
C. 	Serving Probation Is a Sufficiently Definite Event for the
Commencement of a Consecutive Sentence
¶22 	The centerpiece of the impracticality of the
application component of the majority opinion is the assertion
that if a defendant is considered to be serving a suspended
sentence, it is impossible to make a rational consecutive
sentencing determination because there has not yet been a
“sufficiently definite event for commencement of a consecutive
order because it was not clear when or if the suspended sentence
would be executed.” 	Anderson, 2007 UT App 68, ¶ 12.
¶23 	The majority relies on State v. DeChenne, an Oregon
Court of Appeals opinion to support this proposition. 	594 P.2d
831 (Or. Ct. App. 1979). 	In that case, the defendant was
originally sentenced to five years’ imprisonment but was placed
on probation. 	Id. at 832. 	Six months later, he was sentenced in
a different county to eight years’ incarceration for a separate
charge. 	Id. 	The second court ordered the eight-year sentence to
run consecutive to the five-year sentence for which the defendant
was serving probation. 	Id. 	On appeal, the court of appeals held
that there was no “definite event for commencement of the
consecutive sentence in order that the Corrections Division may
implement [the consecutive] sentence.” 	Id. at 832. 	In other
words, because the defendant was still on probation with the
first court and the sentence had not yet been executed, there was

11 	No. 20070328
nothing for the second sentence to be consecutive to. 	Years
later, the Oregon Court of Appeals held that probation is not a
sentence for the purpose of concurrent or consecutive
determinations. 	State v. Gaither, 776 P.2d 595, 596 (Or. Ct.
App. 1989). 	As we held above, however, in Utah probation is a
sentence for the purposes of concurrent or consecutive
determinations. 	We therefore adopt a definition of “serve” that
is at odds with the Oregon definition of probation.
¶24 	Idaho, on the other hand, agrees with our position
concerning concurrent or consecutive sentencing. 	In State v.
Cisneros-Gonzalez, 112 P.3d 782 (Idaho 2004), and State v.
Calley, 99 P.3d 616 (Idaho 2004), the Idaho Supreme Court held
that a trial court “had the authority to impose a sentence of
incarceration to be served separately from a sentence of
incarceration that had been pronounced, but suspended, in a
[separate court] case.” 	Cisneros-Gonzalez, 112 P.3d at 784.
¶25 	Two principles may be extracted by trial judges from
our holdings in this case: 	(1) The concurrent or consecutive
sentencing determination must be made at the time of final
judgment and not at revocation of probation; and (2) Probation is
a sentence for the purposes of section 76-3-401(1) and,
therefore, concurrent or consecutive sentencing determinations
may be made upon a defendant who is currently on probation. 	As
noted in the court of appeals’ dissenting opinion in Anderson,
the insufficiently definite event problem that caught the
attention of the majority and which featured prominently in the
Oregon case is largely ephemeral inasmuch as the Board of Pardons
has the authority to determine when felons should be released.
See Anderson, 2007 UT App 68, ¶ 25 (Davis, J., dissenting). 	In
addition, section 76-3-401(8) sets out the method by which the
Board of Pardons must calculate the terms of incarceration for
felonies to be served consecutively.
¶26 	The application of these principles in this case would
have resulted in assigning the concurrent or consecutive
determination to the second judge who sentenced Mr. Anderson on
his robbery convictions. 	That judge would have had, therefore,
reason to acquire information, typically contained in the
presentence report, concerning Mr. Anderson’s criminal history
before sentencing. 	A presentence report allows a judge, prior to
making a concurrent or consecutive sentencing determination, to
take into account several factors including “the history,
character, and rehabilitative needs of the defendant.” 	Utah Code
Ann. § 76-3-401(2).

No. 20070328 	12
CONCLUSION
¶27 	In conclusion, we hold that a judge must impose
concurrent or consecutive sentencing determinations at the time
of final judgment and not at the revocation of probation. 	A
judge who revokes a defendant’s probation is limited by law to
executing the original sentence and does not have the authority
to rule on whether sentences should be concurrent or consecutive.
Additionally, we hold that probation is a sentence being served
as used in section 76-3-401 for the purposes of determining
concurrent or consecutive sentencing. 	We reverse the court of
appeals’ decision and vacate Mr. Anderson’s consecutive sentence
as ordered by the third judge, Judge Reese. 	Because this case
comes to us from a writ of certiorari, reviewing an appeal of
Judge Reese’s ruling and not the second judge, there is no
authority to remand the case to the second judge for a
determination of concurrent or consecutive sentencing. 	We note,
however, that based on our opinion in State v. Yazzie, 2009 UT
14, 203 P.3d 984, a companion to this case that is also released
today, the second judge’s ruling is illegal because it did not
follow the statutory requirement of Utah Code section 76-3-401(1)
to impose concurrent or consecutive sentencing determinations at
judgment. 	As we stated in Yazzie, an illegal sentence may be
corrected at any time. 	Id. ¶ 19. 	We would therefore urge the
second judge to correct the error by making the concurrent or
consecutive determination.
---
¶28 	Associate Chief Justice Durrant and Justice Parrish
concur in Justice Nehring’s opinion.
---
DURHAM, Chief Justice, 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.
¶30 	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

13 	No. 20070328
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.
¶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.
¶32 	Utah Code section 76-3-401(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 “an
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)(iii), and only
loses jurisdiction over defendants when they are sentenced to
prison. 	See State v. Anderson, 789 P.2d 27, 32 (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-
incarcerated defendant is being sent to prison by another court.
¶33 	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

No. 20070328 	14
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. § 76-3-401(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.
¶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.
¶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.
¶36 	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 felony 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

15 	No. 20070328
grace by the court,” as it is specifically defined in the law,
and not as a sentence. 	Utah Code Ann. § 77-27-1(10).
¶37 	There is precedent for both the majority’s and this
dissent’s approaches to concurrent and consecutive sentencing.
The court of appeals has in the past embraced both approaches.
Compare Bird v. State, 2000 UT App 209U (permitting the
majority’s approach) with State v. Workman, 2007 UT App 199U
(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 209U, para. 2 	(“[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.”).
¶38 	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 76-3-401 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.
---
¶39 	Justice Wilkins concurs in Chief Justice Durham’s
opinion.