¶1concurring:
¶2121 For the same reasons I articulated in State v. Anderson, 2009 UT 13, 1% 29-38, 208 P.3d 990 a companion case also decided today, I concur but write separately because I do not believe that Judge McCleve imposed an illegal sentence on Mr. Yazzie within the statutory framework or the legislative intent. The statute provides:
A court shall determine, if a defendant has been adjudged guilty of more than one felony offense, whether to impose concurrent or consecutive sentences for the offenses. The court shall state on the record and shall indicate in the order of judgment and commitment: ... if the sentences before the court are to run concurrently or consecutively with any other sentences the defendant is already serving.
¶3Utah Code Ann. § 76-3-401(1)(b) (2008). I concluded in Anderson:
[Thhe first court to execute a prison sentence for a defendant who is already incarcerated is the court that should determine whether its sentence is to run concurrent with or consecutive to the prison sentence already being served. In other words, where a defendant who, while on probation supervised by court A, commits another crime for which court B sentences him to prison, it should be court A that determines, when revoking probation, that the prison sentence thus executed will run consecutively to or concurrently with the prison sentence the defendant is already serving.
¶42009 UT 13, ¶30, 208 P.3d 990. Probation is "an act of grace by the court suspending the imposition or execution of a convicted offender's sentence upon prescribed conditions." Utah Code Ann. § 77-27-1(10). Because probation is not a sentence that a defendant is already serving, the decision whether a sentence should be imposed consecutively or concurrently cannot be made until an already-incarcerated defendant is being sent to prison.
¶5122 As I explained in Anderson, policy reasons also support this reading. 2009 UT 13, ¶¶ 31-38, 208 P.3d 990. Utah Code seetion 76-8-401(2) provides that "the court shall consider the gravity and cireumstances *990of the offenses, the number of victims, and the history, character, and rehabilitative needs of the defendant" in determining whether sentences should run consecutively or concurrently. The judge determining sentencing should be the judge with the most information about the defendant. The judge who has the benefit of the entire record, including probation revocation hearings and sentencing hearings, and knows the defendant has been incarcerated and not just had probation revoked and reinstated, is the proper judge to decide concurrent or consecutive sentencing.
¶6123 Judge McCleve made this determination at the proper time. Both Judge Fuchs and Judge McCleve had suspended prison sentences to allow Mr. Yazzie to meet probationary conditions. After it was determined that Mr. Yazzie violated his probation, Judge Fuchs first ordered Mr. Yazzie to prison. Mr. Yazzie then appeared before Judge McCleve, who properly determined whether the prison sentence Mr. Yazzie would serve should run concurrently with or consecutively to the prison sentence he was already serving pursuant to the sentence imposed by Judge Fuchs. In this case, Judge McCleve had the benefit of the entire record, including the reasons why Mr. Yazzie violated probation, and the matters contained in Judge Fuchs's sentencing hearing, in making the consecutive/concurrent determination. Although the majority points out that at the time Judge McCleve ordered Mr. Yazzie to serve probation she had received an Adult Probation and Parole presentence report discussing Mr. Yazzie's previous erimes and ree-ommending probation run concurrently but prison sentences run consecutively, Judge McCleve did not necessarily know whether Mr. Yazzie would be ordered to serve a prison sentence. At the time Mr. Yazzie first appeared before Judge MecCleve, Mr. Yazzie was already on probation ordered by Judge Fuchs. Judge Fuchs did not send Mr. Yazzie to prison for allegedly committing another crime, but revoked and reinstated probation. It is impossible to predict whether district judges will revoke and reinstate probation or order a defendant to prison, for what reasons defendants will violate probation, what changing cireumstances will affect defendants' status, or what extenuating circumstances will arise affecting the consecutive or concurrent determination. The legislature may have revoked the presumption that, absent a court order to the contrary, multiple sentences are to be served concurrently for that very reason; it may have wanted the courts to make the consecutive/concurrent determination from all the information available in every case.
¶7124 As I stated in Anderson, there is precedent for the positions of both the majority and this concurring opinion. It would be helpful for the legislature to revisit the statutes to clarify whether probation is a sentence already being served within the meaning of Utah Code section 76-3-401(1)(b) and at what time the determination of concurrent or consecutive sentencing should be made.