822 P.2d 1011 (Idaho App. 1991), 19098, State v. Hernandez

Docket Nº:19098.
Citation:822 P.2d 1011, 121 Idaho 114
Opinion Judge:WALTERS,
Party Name:STATE of Idaho, Plaintiff-Respondent, v. Wenceslao G. HERNANDEZ, aka Shorty, Defendant-Appellant.
Attorney:Van G. Bishop, Nampa, for defendant-appellant. Larry EchoHawk, Atty. Gen., Kevin P. Cassidy, Deputy Atty. Gen., Boise, for plaintiff-respondent.
Judge Panel:SWANSTROM and SILAK, JJ., concur.
Case Date:December 10, 1991
Court:Court of Appeals of Idaho
 
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Page 1011

822 P.2d 1011 (Idaho App. 1991)

121 Idaho 114

STATE of Idaho, Plaintiff-Respondent,

v.

Wenceslao G. HERNANDEZ, aka Shorty, Defendant-Appellant.

No. 19098.

Court of Appeals of Idaho

December 10, 1991

Page 1012

[121 Idaho 115] Van G. Bishop, Nampa, for defendant-appellant.

Larry EchoHawk, Atty. Gen., Kevin P. Cassidy, Deputy Atty. Gen., Boise, for plaintiff-respondent.

Page 1013

[121 Idaho 116] WALTERS, Chief Judge.

This is an appeal from a district court order denying a motion for reduction of sentences imposed on the defendant's convictions for delivery of controlled substances. We affirm.

Wenceslao Hernandez was charged with three counts of delivery of cocaine, I.C. § 37-2732(a)(1)(A). Pursuant to I.C.R. 11, he pled guilty to two counts and the state dismissed the third. Based upon this plea, the district court sentenced Hernandez on each count to ten years in the custody of the Idaho State Board of Correction, including mandatory terms of three years' incarceration, and imposed a $1,000 fine. The court ordered that the sentences be served concurrently. The judgment of conviction was filed May 22, 1990. Additionally, the court ordered Hernandez to pay $10,000 restitution to the Idaho Bureau of Narcotics, the City-County Narcotics Unit and the Ada County Sheriff's Office for investigative expenses incurred by those governmental agencies. The restitution order was filed May 25, 1990. Hernandez filed no direct appeal either from the judgment of conviction or from the restitution order.

On September 14, 1990, Hernandez filed a motion to reduce his sentences pursuant to Rule 35 of the Idaho Criminal Rules. Following a hearing on the motion, held December 7, 1990, the district court denied Hernandez' request. On January 15, 1991, Hernandez filed a notice of appeal from the denial of his Rule 35 motion.

Hernandez asserts on appeal that: (1) his plea of guilty was involuntarily given and therefore his conviction should be vacated; (2) the district court lacked statutory authority to order him to pay restitution to the government agencies; (3) the court abused its discretion in setting the restitution amount; and (4) the court abused its discretion in declining to reduce his sentences. We will discuss each of these issues in turn.

We first consider Hernandez' contention involving the voluntariness of his plea. Hernandez maintains that the record fails affirmatively to show that he understood the nature of the proceedings against him, and accordingly the plea cannot validly support his conviction. A defendant's claim that his plea of guilty was involuntarily given is an attack on the validity of the original conviction, and must be timely raised on a direct appeal from the judgment of conviction. See I.A.R. 14(a). 1

This appeal, filed on January 15, 1991, was not timely with respect to the judgment of conviction entered May 22, 1990. See I.A.R. 14(a). Nor did Hernandez' filing of the motion under Rule 35 to modify his sentence preserve the right to appellate review of Hernandez' conviction, because that motion was filed more than fourteen days after the...

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