# State v. Nihiser

> Court of Appeals of Arizona · September 30, 1997 · 191 Ariz. 199

URL: https://www.frixlaw.com/law-library/cases/9609988

## Case

- **Full name:** The STATE of Arizona, Appellee, v. Bart Eugene NIHISER, Appellant
- **Court:** Court of Appeals of Arizona
- **Decided:** September 30, 1997
- **Citations:** 191 Ariz. 199; 253 Ariz. Adv. Rep. 40; 953 P.2d 1252; 1997 Ariz. App. LEXIS 175
- **Precedential status:** Published
- **Opinion:** Concurrence by Druke
- **Judges:** Brammer, Druke, Florez
- **Cited by:** 59 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9609988

## How later opinions describe it (automated extraction)

- finding no error in admitting blood test results when there was testimony indicating the person who drew the blood was hospital staff and no evidence was offered by the defendant to rebut the showing

## Opinion text

DRUKE, Chief Judge,
specially concurring.
I concur, but write separately on the two days’ presentence incarceration credit. When a trial court grants probation to a defendant, such as appellant, who has been convicted of violating A.R.S. § 28-697(A)(l), subsection E of the statute requires the court to impose a prison sentence of “not less than four months” as a condition of probation. The court thwarts this legislatively mandated minimum prison sentence if it must, as Mathieu holds, then give the defendant credit for *205 presentence incarceration. Indeed, the legislative mandate could be nullified if the defendant’s presentenee incarceration exceeded four months. Of course, the trial court could avoid this result by increasing the mandated minimum prison sentence by the number of days of presentence incarceration. Here, for example, the court could have imposed a prison sentence of four months and two days. The court could also avoid the result by imposing a jail sentence as an additional condition of probation under § 13-901 (F) and crediting the presentence incarceration against the jail sentence. See State v. Schumann, 173 Ariz. 642 , 845 P.2d 1137 (App. 1993).
For these reasons, I find Mathieu unpersuasive and would adopt a rule that would require a trial court to credit the defendant with presentence incarceration under but three circumstances. First, the court must give credit if it sentences the defendant to prison rather than placing the defendant on probation. State v. Williams, 128 Ariz. 415 , 626 P.2d 145 (App.1981). Second, if the court places the defendant on probation, it must give credit if it collectively imposes, at any time during the probationary period, the maximum period of incarceration (prison and/or jail) permitted as a condition of probation. In this instance, that maximum would be one year under §§ 13-901(F) and 28-697(I)(1). Third, if the court places the defendant on probation, it must give credit if it later revokes probation and sentences the defendant to prison. State v. Wietholter, 130 Ariz. 323 , 636 P.2d 101 (1981). Cf. § 28-697(J) (if probation revoked, no credit given for incarceration pursuant to subsection I).
Accordingly, I concur with the result in this case because the majority does not now order the trial court to give the defendant two days’ presentence incarceration credit against the four month prison sentence imposed as a condition of probation pursuant to § 28-697(E). In my opinion, the court must give the two-day credit only if either circumstance two or three arises in the future.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9609988. Public record. Not legal advice.