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State v. Mathieu8/2/1990
REF--> (1982). Green held that credit must be given for authorized release from incarceration in the county jail imposed as a condition of probation because the failure to give credit resulted in incarceration in excess of the one-year limit found in A.R.S. § 13-901(F). In a similar vein, it reversed a trial court's refusal to give presentence incarceration credit against a defendant's parole time, holding that A.R.S. § 13-709(B) "requires crediting time served against the minimum 25 year portion of the sentence of life imprisonment in the same manner as against any other determinate period of imprisonment." State v. Thomas, 133 Ariz. 533, 540, 652 P.2d 1380, 1387 (1982). See also State v. Wietholter, 130 Ariz. 323, 636 P.2d 101 (1981) (presentence time spent in prison, as opposed to time spent in jail, by probationer for diagnostic purposes must be credited toward sentence imposed after revocation of probation). This court reached a similar conclusion in State v. Ritch, 160 Ariz. 495, 774 P.2d 234 (App.1989), where we held that all presentence time spent in custody by a juvenile, later adjudicated as an adult, should be credited toward the sentence imposed.
We find that the circumstances of this case present the most graphic example of the merging of probation and sentencing. The defendant here will be subject to the very same conditions as those who did not receive probation. He will be treated in every way as any other prisoner who has received a "sentence" and been denied probation. Certainly the nature of his confinement is indistinguishable from theirs. Furthermore, the plain language of A.R.S. § 13-709(B) mandates credit against a "term of imprisonment." It seems logical
to interpret confinement in prison as "imprisonment", whether it is imposed as a condition of probation or as a traditional "sentence."
In this unique situation, where a defendant receives a mandatory prison term as a condition of probation, we hold that he is entitled to credit under A.R.S. § 13-709(B) against that term for time spent in presentence incarceration as any other defendant "sentenced" to prison. We have already found the DWI statutes do not preclude credit for presentence incarceration time, Clements, 161 Ariz. 123, 776 P.2d 801, and we do not disturb here the trial court's discretion to increase the minimum term (up to the statutory maximum).
Conclusion
The defendant was not entitled to credit against his probationary prison term for his presentence incarceration time under the theory of equal protection as it has been interpreted by the courts of this state. However, since the defendant was "sentenced to imprisonment," he was therefore entitled under A.R.S. § 13-709(B) to credit against his mandatory six-month term of imprisonment imposed as a condition of probation for all 150 days of presentence incarceration. Accordingly, although we recognize that we cannot restore the time spent in custody, we modify the sentence imposed to reflect presentence incarceration time pursuant to A.R.S. § 13-4037.
Conviction and sentence affirmed as modified.
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