550 P.2d 130 (Idaho 1976), 12001, State v. Arambula

Docket Nº:12001.
Citation:550 P.2d 130, 97 Idaho 627
Opinion Judge:McFADDEN,
Party Name:STATE of Idaho, Plaintiff-Respondent, v. Roy ARAMBULA, Defendant-Appellant.
Attorney:Bennett & Frachiseur, Twin Falls, for defendant-appellant. Wayne L. Kidwell, Atty. Gen., Lynn E. Thomas, Deputy Atty. Gen., James F. Kile, Asst. Atty. Gen., Boise, for plaintiff-respondent.
Case Date:May 20, 1976
Court:Supreme Court of Idaho
 
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Page 130

550 P.2d 130 (Idaho 1976)

97 Idaho 627

STATE of Idaho, Plaintiff-Respondent,

v.

Roy ARAMBULA, Defendant-Appellant.

No. 12001.

Supreme Court of Idaho.

May 20, 1976

Page 131

[97 Idaho 628] Bennett & Frachiseur, Twin Falls, for defendant-appellant.

Wayne L. Kidwell, Atty. Gen., Lynn E. Thomas Deputy Atty. Gen., James F. Kile, Asst. Atty. Gen., Boise, for plaintiff-respondent.

McFADDEN, Chief Justice.

Defendant Roy Arambula was charged by information with two counts of delivery of a controlled substance (cocaine), and with one count of possession of a controlled substance (cocaine). These charges all constitute felonies. I.C. §§ 37-2732(a)(1)(A), 2732(c)(1). He pleaded guilty to all counts. A presentence investigation report was prepared and submitted to the court. 1

At the sentencing hearing the trial court inquired if the defendant had seen the presentence report, and was advised he had seen it. Defendant's counsel called attention to an incorrect item in the report and it was corrected. Defendant requested that he be placed on probation, and after hearing arguments presented by counsel for the defendant and the state, the trial court sentenced the defendant to ten years on each delivery count, the sentences to be served concurrently, and to a three year term on the possession count, to be served consecutively to the other sentences.

The defendant later filed a motion pursuant to Rule 35 of the Idaho Rules of

Page 132

[97 Idaho 629] Criminal Procedure to reconsider the sentence imposed. At the hearing on this motion the State moved to quash defendant's motion to reconsider the sentence, on the grounds that the appropriate relief for the defendant was by petition for post conviction relief. The trial court granted this motion; however, the trial court after hearing further argument did modify the sentence imposed by changing the three year sentence on the possession count to a concurrent sentence to be served at the same time as the other sentences.

The State, in its brief, moved to dismiss this appeal on the grounds that: (1) the defendant's motion to reduce the sentence was not made a part of this record on appeal; (2) no formal objection was made for the record preserving a contention of overlapping chages; 2 (3) this appeal was from a superceded order of conviction and commitment. 3 The State does not argue that it was prejudiced by defendant's alleged procedural errors and under these circumstances the motion to dismiss is denied. See, I.C.R. 52; Supreme Court Appellate Rule 14; Fairchild v. Olsen, 96 Idaho 338, 528 P.2d 900 (1974).

In his first of three assignments of error, defendant contends the trial court erred in quashing his motion for reduction of...

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