¶1concurring.
¶2Although I agree with the court’s affirmance in this case, I disagree with the court’s treatment of the timeliness of the appeal as it relates to the double jeopardy issue and with the court’s conclusion that Gilligan v. State, 560 P.2d 17 (Alaska 1977), is distinguishable. If Gilligan’s sentence was excessive after revocation of probation, it was excessive when originally imposed, as we have held that, in assessing excessiveness of sentences, the entire length of the sentence must be assessed without regard to the suspension. Ferreira v. State, 602 P.2d 803, 806 (Alaska 1979). Thus, if Nielsen’s claim of double jeopardy arose when sentence was originally imposed, Gilligan’s claim of ex-cessiveness did also; and I fail to perceive any dispositive distinction on this basis.
¶3In my view, the rationale underlying Gilliganis the discouragement of unnecessary appeals. Had we ruled otherwise in that case, any challenge to a sentence would have to be instituted immediately, even if the defendant was pleased with the suspension he obtained; thus, this court would be faced with cases which might never present a problem at all were the defendant to complete probation successfully. That same rationale applies here.
¶4Additionally, I think that an attorney reading Gilliganwould reasonably conclude that he could safely advise his client that any infirmity, constitutional or otherwise, in a sentence, all or part of which had been suspended, need not be appealed at the time of suspension, but could be brought up if the suspension were eventually revoked. Thus, there is a significant reliance factor here. Finally, I see no reason to unnecessarily complicate the law by creating a distinction between those types of sentence appeals allowable after revocation of probation and those not allowable.