710 P.2d 633 (Idaho App. 1985), 16014, State v. Russell

Docket Nº:16014.
Citation:710 P.2d 633, 109 Idaho 723
Opinion Judge:WALTERS,
Party Name:STATE of Idaho, Plaintiff-Respondent, v. Harold William RUSSELL, Defendant-Appellant.
Attorney:Robert Jerry Van Idour, Lewiston, for defendant-appellant., Jim Jones, Atty. Gen., Lynn E. Thomas, Soli. General; A. Rene Fitzpatrick, Deputy Atty. Gen., Boise, for plaintiff-respondent. Robert Jerry Van Idour, Lewiston, for defendant-appellant. Jim Jones, Atty. Gen., Lynn E. Thomas, Soli. Gener...
Judge Panel:BURNETT and SWANSTROM, JJ., concur.
Case Date:November 26, 1985
Court:Court of Appeals of Idaho
 
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Page 633

710 P.2d 633 (Idaho App. 1985)

109 Idaho 723

STATE of Idaho, Plaintiff-Respondent,

v.

Harold William RUSSELL, Defendant-Appellant.

No. 16014.

Court of Appeals of Idaho.

November 26, 1985

Page 634

[109 Idaho 724] Robert Jerry Van Idour, Lewiston, for defendant-appellant.

Jim Jones, Atty. Gen., Lynn E. Thomas, Soli. General; A. Rene Fitzpatrick, Deputy Atty. Gen., Boise, for plaintiff-respondent.

WALTERS, Chief Judge.

Harold Russell pled guilty to one count of first degree burglary and to one count of grand theft. He received two concurrent, fixed ten-year sentences with credit for 214 days previously served. Later he filed a motion under I.C.R. 35, seeking to have the sentences reduced. The district court denied the motion without a hearing, and Russell appeals. We affirm the order.

It is well established that a motion to reduce a legally imposed sentence is addressed to the sound discretion of the district court. State v. Arambula, 97 Idaho 627, 550 P.2d 130 (1976). Such a motion essentially is a plea for leniency which may be granted if the sentence originally imposed was, for any reason, unduly severe. State v. Sutton, 106 Idaho 403, 679 P.2d 680 (Ct.App.1984). The question presented by appeal from the denial of a Rule 35 motion is whether facts presented in connection with the motion, when viewed in the context of information already in the record, 1 show that discretion was abused in failing to grant the leniency requested. State v. Sutton, supra.

Russell could have been sentenced to fifteen years for the first degree burglary charge, I.C. § 18-1403, and to fourteen years for the grand theft charge under I.C. § 18-2408. Therefore, his sentences of ten years on each count were within the maximum allowable by statute. It is discretionary with the sentencing court whether to make the sentence fixed or indeterminate. I.C. § 19-2513 and 2513A. A sentence which is within the allowable maximum will not be disturbed unless a clear abuse of discretion is shown. State v. Beltran, 109 Idaho 196, 706 P.2d 85 (Ct.App.1985); State v. Cotton, 100 Idaho 573, 602 P.2d 71 (1979). A sentence may represent such an abuse if it is shown to be unreasonable upon the facts of the case. State v. Toohill, 103 Idaho 565, 650 P.2d 707 (Ct.App.1982). In Toohill, we explained that a term of confinement is reasonable to the extent it appears necessary, at the time of...

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