OPINION
¶ 1 In this sрecial action, petitioner State of Arizona contends the respondent judge erred in ordering real party in interest Amy Lou Henderson to remain released on bond pending sentencing following her conviction for aggravated driving under the influence of an intoxicant (DUI) in violation of A.R.S. § 28 — 1383(A)(1). The state argues that, because Hеnderson must be imprisoned for four months pursuant to § 28-1383(D) even if she is granted probation, the respondent judge was required to order her “immediately placed into custody after conviction” pursuant to Rule 7.2(b)(1), Ariz. R.Crim. P., 16A A.R.S. That rule generally requires such action for persons convicted in superior court who “will in all reasonable probability suffеr a sentence of imprisonment.” Because the state has no equally plain, speedy, and adequate remedy by appeal,
see
A.R.S. § 13-4032 and Rule 1(a), Ariz. R.P. Special Actions, 17B A.R.S., and because this is a pure question of law, a matter of first impression, and an issue of statewide importance, we accept jurisdiction.
Ariz. Dep’t of Revenue v. Superior Court,
¶ 2 The relevant facts are not disputed. A jury found Henderson guilty of aggravated DUI, a class four felony, on September 12, 2003. Henderson had been released from custody since the time of her arrest. After the jury returned its verdict, thе state moved that she be taken immediately into custody pending sentencing pursuant to Rule 7.2(b), Ariz. R.Crim. P. Henderson objected, arguing that she is a strong candidate for probation and noting she had rejected a plea offer in which the state had proposed recommending that she be placed on probation. Recognizing that § 28-1383(D) and Rule 7.2(b) arguably called for Henderson’s immediate incarceration, the respondent judge nonetheless found that Rule 7.2(b) did not apply and permitted Henderson to remain released on bond under the supervision of pretrial services pending sentencing. The state petitioned for special action relief on October 1.
¶ 3 Although sentencing was set for October 10, this court ordered the parties to continue litigating this special action regardless of the outcome of that proceeding. According to Henderson’s response to the special action petition and the state’s avowal at oral argument, Henderson was рlaced on probation on October 10. Although the issue before us is therefore moot, we may nonetheless decide such an issue when, as here, it is a recurring issue of public importance that will otherwise evade review.
See State ex rel. McDougall v. Municipal Court,
¶ 4 We thus address whether a probation-eligible defendant found guilty of aggravated DUI and, therefore, subjeсt to a mandatory four-month term of imprisonment pursuant to § 28-1383(D) must be immediately taken into custody pursuant to Rule 7.2(b). Rule 7.2(b)(1) provides:
After a person has been convicted of any offense for which the person will in all reasonable probability suffer a sentence of imprisonment, the person shall not be released on bail or on his or her own recognizance unless it is established that there are reasonable grounds to believe that the conviction may be set aside on a motion for new trial, reversed on appeal, or vacated in any post-conviction proceeding. The release of a person pending appeаl shall be revoked if the person fails to prosecute the appeal diligently. 1
Section 28-1383(D) provides in pertinent part:
A person is not eligible for probation, pardon, commutation or suspension of sentence or release on any other basis until the person has served not less than four months in prison if the person is convicted under [various aggravatеd DUI statutes, including § 28-1383(A)(l) ].
¶ 5 We review de novo the interpretation of a statute.
State v. Fell,
*550 ¶ 6 In this context, we are unable to discern a plain meaning of the rule and statute read in conjunction because it is not clear whether the four-month prison term mandated by § 28-1383(D) is a “sentence of imprisonment” for purposes of Rule 7.2(b)(1). 2 As noted above, the statute requires a prison term even when a person is granted probation. That provision, however, is at odds with the general felony sentencing scheme, which provides for either the imposition of a prison sentence or the suspension of the imposition of sentence if probation is granted. See A.R.S. § 13-603(B), (E) (sentencing court may suspend imposition of sentence and grant probation or, if probation not granted, impose sentence of imprisonment); Ariz. R.Crim. P. 26.10(b)(3), 17 A.R.S. (sentencing court must pronounce terms of sentence or probation). As Division One of this court has stated:
Probation and imprisonment in a Department of Corrections facility for a single offense are not compatible under the usual statutory scheme. That being the case, A.R.S. section 28-697(E) [the predecessor aggravated DUI statute] does not mesh well with the other statutory provisions that apply to sentencing and probation.
State v. Arzola,
¶ 7 Indeed, at oral argument, the state characterized the unique aggravated DUI sentencing provision currently codified in § 28-1383(D) as a “strange animal.” The state contends, however, that the mandatory prison term is a sentence, arguing that, because Rule 26.1, Ariz. R.Crim. P., 17 A.R.S., dеfines “sentence” as “the pronouncement by the court of the penalty imposed upon the defendant after a judgment of guilt,” that definition should be used to define the phrase “sentence of imprisonment” in Rule 7.2(b).
3
We agree that the mandatory prison term is a penalty. The legislature’s intent in prescribing mandatory prison time for аggravated DUI offenders was to deter “ ‘persons from driving while affected by alcohol by providing for penalties that are commensurate with the seriousness of this offense.’ ”
State v. Gandara,
¶ 8 We are less persuaded by the state’s assertion that the intent of the mandatory imprisonment provision was to “stop the carnage” by “remov[ing] ... drunk[en] drivers from the road as soon as possible.” If that were true, the legislature could have made probation absolutely unavailable for this crime, as it has, for example, for sexual assault. See A.R.S. § 13-1406(B). If the legislature had done so, of course, there would be no question that a person convicted of aggravated DUI must be taken into custody immediately upon return of a guilty verdict unless one of the other exceptions in Rule 7.2(b)(1) were established. The legislature also could have expressly required that a defendant be taken immediately into custody when a jury returns a guilty verdict for aggravated DUI. But the legislature did not do so.
¶ 9 In addition, we note that the legislature has made probation available for first-time felons convicted of other crimes that, like aggravated DUI, involve behavior that creates a risk of serious harm to other people. 4 *551 Rule 7.2(b) permits the possibility of presentence release in those cases. We also note that the state’s position here is inconsistent with the actions it has taken in this aggravated DUI case, in which it agreed to recommend probation for Henderson if she accepted the proffered plea agreement. And, at oral argument, we learned that Henderson was released on bond for over one year pending a trial that was delayed at least in part to continuances requested by and granted to the state.
¶ 10 Henderson, in contrast, points to A.R.S. § 13-701(A), which provides in part that “[a] sentence of imprisonment for a felony shall be a definite term of years.” She contends the mandatory four months’ imprisonment under § 28-1383(D) is not a “sentence of imprisonment” as defined in § 13-701 because the range of imprisonment for a class four felony under that statute is one to 3.75 years.
See
A.R.S. §§ 13-702(A), 13-702.01(A), (B). She argues that, because a trial court can only grant probation by suspending the imposition of sentence,
see
§ 13-603(B), a defendant who receives probation is therefore never “sentenced,” and the mandatory prison term is only a condition of probation. Henderson accurately cites several cases that describe the mandatory term of incarceration following a conviction for aggravated DUI as a condition of probation.
See State v. Fragozo,
¶ 11 Our review of these cases reveals that the
Benally
court described the mandatory prison term as a condition of probation becausе the predecessor statute to § 28-1383(D) at issue in that case, former A.R.S. § 28-692.02(A), provided that the “judge shall not grant probation ... except
on the condition that
the person serve not less than six months in prison.”
Benally,
¶ 12 Noting this statutory change, the state makes the facially persuasive argument that the mandatory prison term cannot be a condition of probation because the plain language of § 28-1383(D) provides that the prison term must be served before the defendant is even eligible for probation. Nonetheless, almost without exception, our appellate courts have expressly or implicitly approved trial courts’ ordering the mandаtory term of incarceration in an aggravated DUI ease to be served as a condition or term of probation, despite the post-June 28, 1990, language that appears to make that impossible.
See Fragozo; State v. Nihiser,
¶ 13 We need nоt decide the propriety of treating the mandatory prison term as a condition of probation, which, we suspect, has been a legal fiction employed to fit the mandatory prison term into an existing felony sentencing structure that is otherwise ill-suited to accommodate such a “strange animal.” 5 See § 13-603(B), (E); Ariz. R.Crim. P. 26.10(b)(3). Rather, we address the nаrrower question of whether the mandatory prison term, regardless of how it is semantically labeled, triggers mandatory, immediate *552 incarceration after conviction pursuant to Rule 7.2(b)(1). On that issue, we find the history of the rule instructive.
¶ 14 Formerly, Rule 7.2 made presentenee release unavailable to any defendant “convicted of any offense for which he
has or may
suffer a sentence of imprisonment.” (Emphasis added.)
See
163 Ariz. XLIV (1990). In
State v. Superior Court,
¶ 15 We conclude that the supreme court’s intent in changing the rule was to differentiate between those found guilty who will probably be granted probation from those who probably will not and to give a trial court discretion to release the former class of convicted persons pending sentencing in appropriate eases. The rule’s reference to imprisonment, not probation, can be explained by the history outlined above. It was formerly written exclusively in terms of imprisonment, and the rule was changed economically by deleting and adding a minimum of words.
¶ 16 We also find it significant that, at the time of the rule change, the mandatory prison time for those convicted of aggravated DUI was expressly denoted a condition of probation.
See Benally,
¶ 17 We do not suggest that presentence release should necessarily be granted to persons found guilty of aggravated DUI for whom probation is likely. Rather, we merely hold that any such decision is properly left to the trial court, to whom the legislature has given the discretion to decide, based on the facts of the case and the individual defendant, whether to suspend the imposition of sentence and grаnt probation. Accordingly, we find that the respondent judge did not exceed her legal authority but, rather, acted within her discretion in permitting Henderson to remain released on bond pending sentencing following the jury’s verdict that she was guilty of aggravated DUI.
¶ 18 Although we accept jurisdiction, we deny relief.
Notes
. Henderson did not establish, and does not contend, that "reasonable grounds [exist] to believe that [her] conviction may be set aside on a motion for new trial, reversed on appeal, or vacated in any post-conviction proceeding.” Ariz. R.Crim. P. 7.2(b)(1). Although not at issue in this special action, those exceptions and the last sentence of Rule 7.2(b)(1) appear to provide for the posting of an appeal bond (or similar post-conviction bond) by a defendant sentenced to prison if one of the specified conditions is established. But those provisions are directly at odds with A.R.S. § 13-3961.01, which specifically prohibits any such bond after sentencing unless a court finds incarceration would endanger the defendant's life. This court has previously determined that the statute governs over the rule.
State v. Hawkins,
. Much of the case law in this area is based on similar provisions that were contained in previous versions of the DUI laws. See, e.g., former A.R.S. § 28-692.02(C), 1988 Ariz. Sess. Laws, ch. 246, § 8; former A.R.S. § 28-697(E), (F), 1993 Ariz. Sess. Laws, ch. 223, § 8.
. In support of its contention that the mandatory, four-month imprisonment under § 28-1383(D) constitutes a "sentence,” the state alsо pointed out at oral argument that § 28-1383(H)(1) refers to "a person sentenced pursuant to” § 28-1383(D). (Emphasis added.) For the reasons noted below, however, we do not find that word choice controlling.
.
See, e.g.,
A.R.S. §§ 13-1201 (endangerment); 13 — 1204(A)(11) (aggravated assault causing temporary but substantial disfigurement or bodily impairment); 13-1507 (residential burglary without a weapon); 13-3408(C) (first-time sale or importation of narcotic drugs); 28-622.01 (felony flight from pursuing law enforcement vehicle);
see also
A.R.S. §§ 13-604(F); 13-901;
State v. George,
. At oral argument, the state conceded that, at Henderson’s sentencing hearing, it had not objected when the respondent judge granted probation to Henderson before she had served the mandatory prison term.
. As the state points out, in
State v. Superior Court,