State v. Anderson

Summary

The Utah Supreme Court held that probation constitutes a sentence being served under Utah Code section 76-3-401 for purposes of determining whether sentences run concurrently or consecutively. It further held that a judge revoking probation may execute only the previously imposed sentence and lacks authority to make a concurrent-or-consecutive determination for the first time at the revocation hearing. The court reversed the Utah Court of Appeals and vacated the consecutive sentence imposed by the third judge.

Holdings

1. Probation is a sentence that a defendant serves within the meaning of Utah Code section 76-3-401(1)(b), even when the sentence is served outside jail or prison.
2. A concurrent-or-consecutive sentencing determination must be made at the time of final judgment and may not be made for the first time upon revocation of probation.
3. A judge who revokes probation after a prison sentence has been suspended has authority only to execute the previously imposed sentence and lacks authority to decide whether that sentence runs concurrently or consecutively to another sentence.
4. The second judge, who sentenced Anderson for the aggravated robberies while he was serving probation on the theft sentence, was the judge with statutory authority to determine whether the sentences would run concurrently or consecutively.

Questions Presented

1. Whether probation is a sentence that a defendant is already serving under Utah Code section 76-3-401(1)(b) for purposes of determining concurrent or consecutive sentences.
2. Whether a judge revoking probation may make a concurrent-or-consecutive sentencing determination for the first time at the probation-revocation hearing.
3. Which sentencing court had statutory authority to determine whether the theft and aggravated robbery sentences would run concurrently or consecutively.

Disposition

reversed_and_remanded