§706-629 Calculation of multiple dispositions involving probation and imprisonment, or multiple terms of probation. (1) When the disposition of a defendant involves more than one crime:
(a) The court shall not impose a sentence of probation and a sentence of imprisonment except as authorized by section 706-624(2)(a); and
(b) Multiple periods of probation shall run concurrently from the date of the first such disposition.
(2) When a defendant, already under sentence, is convicted for another crime committed prior to the former disposition:
(a) The court shall not sentence to probation a defendant who is under sentence of imprisonment with more than six months to run;
(b) Multiple periods of probation shall run concurrently from the date of the first such disposition; and
(c) When a defendant, already under sentence of probation, is sentenced to imprisonment, the service of imprisonment shall not toll the prior sentence of probation.
(3) When a defendant is convicted of a crime committed while on probation and such probation is not revoked:
(a) If the defendant is sentenced to imprisonment, the service of such sentence shall not toll the prior sentence of probation; and
(b) If the defendant is sentenced to probation, the period of such probation shall run concurrently with or consecutively to the remainder of the prior period, as the court determines at the time of disposition. [L 1972, c 9, pt of §1; am L 1986, c 314, §30]
COMMENTARY ON §706-629
This section reflects the Code's preference for concurrent sentences and its disfavor of consecutive sentences.[1]
Subsection (1) deals with the problems presented when the disposition of a defendant involves more than one offense or when a defendant, already under sentence or suspension of sentence, is convicted for an offense committed prior to the former disposition.
Subsection (1)(a) continues the position of the Code that probation and imprisonment are inconsistent dispositions unless imprisonment is limited to a short period of six months or less.2
Subsection (1)(b) provides that periods of suspension or probation run concurrently from the date of the first disposition. If imprisonment is not warranted, there hardly seems any justification for providing elongated periods of suspension or probation when the disposition of the defendant involves more than one offense or when a defendant, already under suspension of sentence or on probation, is convicted for a crime committed prior to the former disposition.
Subsection (1)(c) provides that service of an indeterminate term of imprisonment, with its built-in term of parole, shall satisfy a suspended sentence on another count or a prior suspended sentence or a prior sentence to probation. By providing that the indeterminate term of imprisonment satisfies the other dispositions, subsection (1)(c) results in substantial concurrent service of all dispositions.
By providing that periods of suspension or probation run during a period of imprisonment for a definite term, subsection (1)(d) provides concurrent service of dispositions in situations involving suspension or probation and a definite term of imprisonment.
Subsection (2) is addressed to a somewhat different problem: multiple dispositions involving an offense committed while under suspension of sentence or on probation.
Subsection (2)(a) provides that if the defendant is sentenced to imprisonment for an indeterminate term, the service of such sentence shall satisfy the prior unrevoked suspended sentence or sentence to probation. This is in conformity with the concept of concurrent dispositions.
Subsection (2)(b) provides that if the defendant is sentenced to imprisonment for a definite term, the period of the prior suspension or prior probation shall not run during imprisonment. This is a slight departure from the policy of the Code generally favoring concurrent dispositions. However, because definite terms of imprisonment are relatively short, and because the defendant has committed a crime while under suspension or on probation, the situation calls for a departure from the general policy and permits dispositions which are to be served consecutively. This subsection is analogous to §706-668 which permits consecutive terms of imprisonment for crimes committed while in prison. A further consideration for subsection (2)(b) is that, if the period of suspension of probation runs during a definite term of imprisonment (which does not have a built-in term of parole), there might, in some cases, not be sufficient means for court control following discharge of the defendant from imprisonment.
Finally, subsection (2)(c) provides that, where the court has not revoked a prior disposition of suspension or probation and has imposed an additional period of suspension or probation, the multiple periods shall run either concurrently or consecutively as the court determines at the time of sentence. Once again, although this subsection represents a limited departure from the policy of the Code favoring concurrent service of dispositions, it is called for by the defendant's situation. Again, it is analogous to the powers that the Code grants the sentencing court, under §706-668, in cases where a prisoner has committed a crime while in prison or during escape.
Case Notes
Imprisonment for a felony does not toll a prior probation sentence for an unrelated felony. 71 H. 612, 801 P.2d 1206 (1990).
If, at a combined sentencing disposition, imprisonment is imposed as a condition in more than one probation sentence, the period of imprisonment served for concurrent sentences of probation shall not exceed the maximum term allowed for a sentence of probation. 97 H. 430, 39 P.3d 557 (2002).
Subsection (1) applies to the combined sentencing disposition for multiple convictions, irrespective of whether the crimes were charged or tried in separate cases; subsection (1)(b) requires that in the event multiple sentences of probation are imposed, the sentences must run concurrently. 97 H. 430, 39 P.3d 557 (2002).
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§706-629 Commentary:
1. Cf. §706-670.
2. Commentary to §706-624.