In Re Acker

Opinion

CROSBY, J.

Does a prison sentence recalled pursuant to Penal Code section 1170, subdivision (d) constitute a “prior separate prison term” which may be used to enhance a new offense under section 667.5? We hold it does not.

I

In 1978 Gordon Acker was convicted of burglary (§ 459); the sentence was suspended, and he was placed on five years’ probation. He violated the terms of probation, however, and was sentenced to three years in prison in 1979. A diagnostic study was prepared in which the Director of Corrections recommended Acker’s sentence be recalled and probation granted (§ 1170,…