State v. Nihiser

DRUKE, Chief Judge,

specially concurring.

I concur, but write separately on the two days’ presentence incarceration credit. When a trial court grants probation to a defendant, such as appellant, who has been convicted of violating A.R.S. § 28-697(A)(l), subsection E of the statute requires the court to impose a prison sentence of “not less than four months” as a condition of probation. The court thwarts this legislatively mandated minimum prison sentence if it must, as Mathieu holds, then give the defendant credit for *205presentence incarceration. Indeed, the legislative mandate could be nullified…