Thе defendant was charged by information with 11 counts of obtaining money by false pretenses and entered a plea of guilty to all counts. The superior court sentenced the defendant to not less than one nor more than five years imprisonment on Count One, and suspended imposition of sentence on Counts 2 through 11, placing him оn probation for three years on each Count, to run consecutively. The net effect being that the defendant was sentenced to a period of imprisоnment and a total of 30 years of probation. The defendant filed a timely appeal from the judgment and sentence. The Court of Appeals, Division Two, affirmed the judgment and sentence.
State v. Pakula,
On appeal, defendant claims that the sentence was illegally imposed in that the sentencing court, contrary to the procedure described by 17 A.R.S. Rules of Criminal Procedure, did not disclose to the defendant the rеason for excising a portion of the presentence report.
The presentence report was prepared in two documents, Parts I and II. Part I of the report stated that additional information not contained in the report was appended to the file and that additional information not containеd in Part I was contained in Part II.
1
The record discloses that counsel for the defendant was aware that there were additional matters not covered in the rеport.
2
However, counsel for the defendant did not object to this ¿omission at the superior court level or in any
*124
fashion suggest dissatisfaction with the procedurе. There was no request ever made to examine the material in Part II. We agree that the procedure was not in accord with the provision of Rule 26.6(c) оf the Rules of Criminal Procedure, 17 A. R.S. Any error was waived by the failure to object.
State v. Magallanes,
Defendant complains that his sentence is excessive, especially the cоnfinement imposed under Count I. When the sentence is within the statutory limits we will not disturb it in the absence of unusual circumstances amounting to a clear abuse of the sentencing court’s discretion.
State v. Waldrip,
The defendant urges that the consecutive probationary period fоr the remaining counts is excessive and unreasonable. The more fundamental question is whether the sentence as imposed by the superior court on the remаining ten counts was a legally permissible sentence.
The power of the superior court to suspend a sentence must be found in the statutes of the state. The superior courts of this state have no inherent power to suspend the imposition or execution of sentence in any case.
State v. Bigelow,
There is no express provision by statute or rule which permits the superior court, on multiple counts in the same information, to impose consecutive periods of probation. Under the 1939 Code, ACA 44-2226, and the 1956 Rules of Criminal Procedure, Rule 339, the terms of imprisonment on two or more offenses charged in the same indictment or information would be served concurrently unless the court expressly directed that they be served consеcutively. Division One of the Court of Appeals in
State v. Cutting,
The issue in this case has not been before us in this posture. In
State v. Ortiz,
The sentence pronounced in the case at issue mixes confinement in the state prison with probation following the imprisonment. The trial court was no doubt attempting to insure that appellant make restitution for the funds illegаlly obtained. The sentence, however, conflicts with the structure of the sentencing process in Arizona. In
State v. O’Donnal,
It also appears that the legislative policy is that courts should either confine or suspend a sentence but not both. Until 1970 there was no authority for the superior court to use confinement as a condition of probation.
State v. Evans,
supra;
State v. Van Meter,
When it is considered that probation is under the supervision of the courts and confinement is under the supervision of the executive department; that there is no specific authority for consecutive terms of probation much less consecutive terms of confinement and probation, we conclude that the consecutive terms of probation following imprisonment in the state prison was not an authorized sentеnce. The sentence on Count One is affirmed, but the sentence as to Counts 2 through 11 inclusive is set aside, and the cause is remanded to the superior court for impоsition of a legal sentence on these Counts consistent with the views expressed in this opinion.
Notes
. The presentence report — part 1, page 17 states in part: “DECLARATION OF NON-DISCLOSED ITEM: Appended in Part II of this report is information under headings Summary, Treatment Program, and Recommendation, which information is not for disclosure.”
. [Defense counsel] : “Yes. I know when I address you, Your Honor, that you have given this matter a lot of thought. You have had the benefit of an excellent probation report from Mr. Johnson, and I am sure there’s letters in the file and other considerations you have considered, plus your experience in these matters.”