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State v. Clements6/29/1989
A court is statutorily obliged to impose at least a six month prison term when it places a felony DWI offender on probation. A.R.S. § 28-692.01(F). The question presented by this appeal is whether A.R.S. § 28-692.01(F) deprives the court of authority to credit presentence incarceration time against this mandatory six month term.
I. BACKGROUND
A. Procedural History
The defendant was charged with driving under the influence of alcohol (DWI) in violation of A.R.S. § 28-692. Defendant had four times previously been convicted of the same offense. Thus, pursuant to A.R.S. § 28-692.01(F), his crime was designated a class 5 felony.
The defendant agreed to plead guilty to DWI with two prior offenses. In keeping with the mandatory imprisonment requirement of A.R.S. § 28-692.01(F) and in accordance with the provisions of his plea agreement, defendant was ordered to serve six months' "flat" time in the Department of Corrections as a condition of three years' probation. Although the defendant had spent 96 days in presentence custody, he was given no credit for this time.
Defendant's counsel filed this appeal in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), asking the court to search the record for reversible error. Upon a review of the record, we observed that the trial court believed it was statutorily obliged to deny the defendant credit for presentence incarceration. We directed the state to file a brief addressing whether the trial court erred in so restrictively interpreting its power.
B. Mootness
Because defendant has already served his six month term of imprisonment, our decision cannot affect him. However, because the issue "threatens to evade review as a result of the relative brevity of the sentences imposed under the statute," we resolve it. State v. Sirny, 160 Ariz. 292, 772 P.2d 1145 (App.1989).
II. DISCUSSION
A. Waiver
We first dispose of the state's contention that defendant waived presentence credit by the following provision of his plea agreement:
The parties stipulate [that] Defendant shall serve 6 months flat in the Dept. of Corrections as a condition of 3 years probation.
We find no waiver. The reference in the plea agreement to six months' "flat time" describes the prisoner's ineligibility for early release or parole. See State v. Rodriguez, 153 Ariz. 182, 183, 735 P.2d 792, 793 (1987); In re Webb, 150 Ariz. 293, 723 P.2d 642 (1986). It is silent as to his eligibility or ineligibility for presentence credit. Indeed, the defendant's change of plea hearing was conducted upon the assumption that the defendant was entitled to such credit. The trial court stated:
Mr. Clements, as I read the law, . . . sentencing in this case is going to be mandatory six months' time in Department of Corrections . . .
You'll, of course, get credits for the time that you're in now.
(Emphasis added.) The prosecutor did not intervene to present a different interpretation until defendant's sentencing.
We conclude that the defendant did not waive the opportunity for presentence credit by the terms of his plea.
B. May Presentence Jail Time Be Credited Against "Six Months in Prison?"
We turn to the question whether A
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