State v. Schroeder

OPINION FROEB, Chief Judge. On November 4, 1983, the appellant was placed on three years’ probation following a guilty plea to the crime of attempted burglary, third degree, a class six undesignated offense, cause CR-134842. On September 20, 1984, a complaint was filed charging appellant with second degree burglary, a class three felony, cause CR-143456. The offense occurred September 18, 1984. On November 5, 1984, appellant entered into a plea agreement wherein he agreed to plead guilty to trespass, first degree, a class six felony with one prior felony conviction in CR-134842 and while on probation for CR-134842. The agreement provided that appellant would be sentenced pursuant to A.R.S. § 13-604.01 to the presumptive term and that the term would be “flat time” and consecutive to the sentence imposed in CR-134842. Appellant was sentenced in accordance with the plea agreement. • Appellant contends that his sentence was improper because his prior offense was not designated a felony at the time he committed the present offense. We reject appellant’s argument. Effective August 3, 1984, the legislature amended A.R.S. § 13-702(H) to provide that all undesignated offenses shall be treated as felonies until designated misdemeanors. Laws 1984, ch. 16. The record on appeal does not show that appellant’s prior offense was designated a misdemean- or prior to the date of the current offense, September 18, 1984. Therefore, pursuant to A.R.S. § 13-702(H), as amended, appellant was, in effect, on probation for a felony when he committed the offense on September 18, 1984. Since appellant was effectively on probation for a felony, application of A.R.S. § 13-604.01 was proper. Appellant argues that since he was sentenced for the prior offense before the effective date of the 1984 revision to A.R.S. § 13-702(H), he was on probation for an undesignated class six offense, not for a felony, when he committed the present offense. Appellant relies on State v. Sweet, 143 Ariz. 266 , 693 P.2d 921 (1985). Appellant’s reliance on State v. Sweet is misplaced. In Sweet , the offense Sweet committed while on probation occurred pri- *366 or to the effective date of the 1984 amendment to A.R.S. § 13-702(H). While Sweet does address the issue of designating the status of a prior offense, it does not address the issue currently on appeal, i.e., the effect of the 1984 amendment to A.R.S. § 13-702QH). Appellant’s second contention on appeal is that the judgment fails to reflect credit for 35 days of pretrial incarceration. Appellant and appellee agree that a credit for 35 days should be granted. Therefore, we amend the judgment to reflect a credit for 35 days of pretrial incarceration to be applied to the sentence imposed in CR-143456. Judgment affirmed as modified. CONTRERAS, P.J., and MEYERSON, J., concur.