§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.



  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.



  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.



 



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§706-629 Commentary:



 



1.  Cf. §706-670.



 



2.  Commentary to §706-624.