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State v. Gandara1/28/1992
HOWARD, Judge.
In this appeal from his convictions in consolidated cases of two counts of driving under the influence of intoxicating liquor (DUI) with a suspended license (CR-31319 and CR-31700) and one count of aggravated DUI with a suspended license or one restricted for DUI (CR-31937), all class 5 felonies, appellant questions the propriety of the sentences.
Following appellant's conviction of these charges pursuant to a plea agreement, the trial Judge sentenced him to the presumptive two-year prison term in CR-31319 and to three-year terms of probation on the remaining counts, to be served concurrently with one another but consecutively to the prison term in CR-31319. The court ordered that the mandatory six-month terms of imprisonment under A.R.S. § 28-692.02(D) in CR-31700 and CR-31937 be served concurrently with the prison term in CR-31319 and concurrently with each other. The court also ordered that probation on the latter charges would not begin until after appellant's release from parole supervision in CR-31319.
Before imposing this sentence, the trial Judge stated what he intended to do and asked counsel if there were any legal problem with the proposed sentences. There were no objections; defense counsel only asked the court to word the sentence carefully to show that the six-month terms would be served first, together with the other prison term, followed by probation. In light of the fact that appellant raised no objection at the sentencing hearing after the court clearly expressed its intentions, his claims are waived absent fundamental error.
Appellant first argues that the trial court erred in imposing terms of imprisonment in addition to probation in CR-31700 and CR-31937. Appellant's reliance on this court's decision in State v. Everhart, 169 Ariz. 404, 819 P.2d 990 (App. 1991), is misplaced. In Everhart, this court held that the trial court erred in sentencing the defendant to both a term of probation and imprisonment on the same count of attempted child molestation. However, that case involved the application of A.R.S. § 13-604.01, the special sentencing statute for persons convicted of dangerous crimes against children which, unlike A.R.S. § 28-692.02(D), does not contain a specific mandatory prison term as a condition of probation.
A.R.S. § 28-692.02(D) provides in part as follows:
A person convicted under this section is not eligible for probation, pardon, parole, commutation or suspension of sentence or release on any other basis . . . until the person has served not less than six months in prison.
The constitutionality of the mandatory prison term as a condition of probation for persons convicted of DUI with a cancelled, suspended, revoked, or refused license was addressed in State v. Benally, 137 Ariz. 253, 669 P.2d 1030 (App. 1983). The court reasoned that the legislature's stated purpose of, among other things, deterring "persons from driving while affected by alcohol by providing for penalties that are commensurate with the seriousness of this offense," Laws 1982, ch. 234, § 1, was reflected in the mandatory prison term. The court noted that, before the 1982 amendment, the sentence could be suspended and the offender placed on probation only in accordance with the general probation provisions of A.R.S. § 13-901. The special probation provisions under Title 28 supplement, rather than supplant, the general probation provisions. State v. Clements, 161 Ariz. 123,
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