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Name: People v. Wagner
Case #: S156537
Court: CA Supreme Court
District CalSup
Opinion Date: 03/09/2009

A defendant placed on probation with imposition of sentence suspended who thereafter is convicted and imprisoned for a new offense can request sentencing for the probation case under either Penal Code section 1203.2a or section 1381 — both statutes provide the means to avoid inadvertent consecutive sentencing. Under section 1203.2a, where imposition of sentence is suspended and probation granted, the probationer who has incurred a subsequent criminal conviction can request “speedy” sentencing by stating to the court that he/she wishes imposition of sentence without his/her presence and in the absence of counsel. In the case where sentence has not previously been imposed, if the court fails to impose sentence or make any other order terminating its jurisdiction within 30 days after the probationer has requested sentencing in the manner provided by the statute, the court is deprived of all jurisdiction over the probationer it may have retained in the granting of probation. Upon imposition of sentence, the commitment date is the date probation is granted, unless probationer is serving a state prison sentence for a subsequently committed offense, and then it is the date of commitment for that offense. The probationer may also avail himself of section 1381. In that case, probationer may personally appear with counsel to defend himself against the revocation. If probationer is not brought for sentencing within the 90 days provided for in the statute, the revocation is dismissed, but under section 1387, the prosecution may refile the revocation once more during the probationary period, as determined with regard to any tolling periods. In a footnote, the Court noted that the opinion did not address the situation where sentence is imposed but execution suspended with a grant of probation.