State of Utah v. Diaz

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Anthony Allen Diaz,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990432-CA

F I L E D
March 9, 2000
  2000 UT App 57 -----

Eighth District, Vernal Department
The Honorable A. Lynn Payne

Attorneys:
Wesley M. Baden, Vernal, for Appellant
Jan Graham and Karen A. Klucznik, Salt Lake City, for Appellee

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Before Judges Jackson, Garff,(1) and Orme.

JACKSON, Associate Presiding Judge:

Diaz argues the trial court should have granted credit for his presentence incarceration against the one-year jail sentence imposed on Count II (the misdemeanor). However, Diaz failed to object to the trial court's decision to commit the matter of credit for time served to the Board of Pardons' discretion. Thus, Diaz failed to preserve the issue for appeal.(2)See State v. Tillman, 750 P.2d 546, 551 (Utah 1987).

Nonetheless, we consider it necessary to address the trial court's decision to defer application of Diaz's credit to the Board of Pardons. We find implicit in the court's decision the intent that the Board apply all the credit for time served against the zero-to-five-year felony sentence, and none against the one-year misdemeanor sentence. This would certainly not be an abuse of the court's broad sentencing discretion. See State v. McKenna, 728 P.2d 984, 986 (Utah 1986). However, because the trial court's ruling regarding this sentencing detail was not express, it is possible that the court intended otherwise. Thus, we remand for the limited purpose of allowing the trial court to make its credit allocation explicit.

Further, Diaz contends the trial court abused its discretion when it ordered the felony and misdemeanor sentences to run consecutively, and that both run consecutive to the sentence on his earlier felony conviction. The State argues Diaz failed to provide an adequate record on appeal. The presentence report was not a necessary part of the record, however, as the hearing transcripts reflect that the trial court considered the required factors. See Utah Code Ann. § 76-3-401(4) (1999) (stating "court shall consider the gravity and circumstances of the offenses and the history, character, and rehabilitative needs of the defendant"). Thus, the trial court did not abuse its discretion in ordering Diaz's sentences to run consecutively.

Affirmed in part and remanded in part.
 
 
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge -----

WE CONCUR:
 
 
 

______________________________
Regnal W. Garff, Judge
 
 
 

______________________________
Gregory K. Orme, Judge

1. Senior Judge Regnal W. Garff sitting by special appointment pursuant to Utah Code Ann. § 78-2-4(2) (1996); Utah Code Jud. Admin. R3-108(4).

2. We do not agree with Diaz that the trial court's ruling was plain error. In State v. Richards, 740 P.2d 1314 (Utah 1987), the supreme court held that "the Equal Protection Clause requires that credit against any sentence must be given for all presentence incarceration imposed on a defendant because he or she cannot post bail." Id. at 1317. Richards does not mandate, however, that Diaz be given credit against the one-year jail sentence in particular. Rather, it simply requires that he be given credit.