concurring-in-part-and-dissenting-in-part">BAKER, Judge,

concurring in part and dissenting in part.

I concur in the majority's finding that the trial court properly revoked Pugh's probation. However, I respectfully disagree with the conclusion that the trial court must order execution of the entire sentence that was suspended at the time of the initial sentence. ®

In the casé that the majority relies on, Stephens v. State, 801 N.E.2d 1288 (Ind.Ct.*206App.2004), the State argued that the trial court did not have jurisdiction to impose an executed sentence less than the original suspended four-year sentence. The Stephens court recognized that Indiana Code section 85-38-2-3(g)(1) allows a trial court to modify the conditions of a defendant's probation, which includes ordering the probationer to serve a prison sentence under Indiana - Code section - 85-88-2-2.8(c). Nonetheless, the Stephens court opined that revocation and modification were mutually exclusive, such that the trial court could not revoke only a part of the original sentence. The result was that if the magic word "revoke" appeared anywhere in the trial court's pronouncement, the only option was to revoke the entirety of the original sentence.

Since I have been a member of the judiciary, trial courts throughout the state have used the term "revoked but for" as shorthand to express the idea that they have modified the defendant's sentence and are imposing a period of incarceration less than that of the original sentence. I was a trial court judge for 13 and one-half years and have been a judge on this court since 1989, and I have never heard a trial court say otherwise. In short, I find the reasoning in Stephens to be unpersuasive.

Moreover, both Stephens and the present case depart from precedent that has held that trial courts may revoke less than the entirety of a probationer's suspended sentence. Indeed, the majority cites to Kincaid v. State, 736 N.E.2d 1257 (Ind.Ct.App.2000), in which a panel of this court upheld the trial court's order that the defendant serve six years of his ten-year suspended sentence for violating probation. Op. p. 204. See also McKnight v. State, 787 N.E.2d 888 (Ind.Ct.App.2003) (revoking of 84 of the possible 91 months of probation was not abuse of discretion)

Here, the majority has raised this issue sua sponte and forced the trial court to revoke all of Pugh's sentence even though the State has not argued for this result. In fact, the State argued that "[the trial court properly imposed part of Pugh's previously suspended sentence." Appellee's Br. p. 3 (emphasis added). I would hold, in accordance with precedent and with the longstanding practice of Indiana trial courts, that if a trial court revokes less than the entirety of the original sentence, the sentence is effectively modified. The arguments to the contrary in Stephens and the present case are nothing more than legal hair-splitting.

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