State v. Avelar

• Decision Date: 02 April 1999
• Docket Number: No. 24020,24020
• Citation: 132 Idaho 775,979 P.2d 648
• Parties: STATE of Idaho, Plaintiff-Respondent v. Antonio AVELAR, Defendant-Appellant. Boise, November 1998 Term
• Court: Idaho Supreme Court

Page 648

979 P.2d 648

STATE of Idaho, Plaintiff-Respondent v. Antonio AVELAR, Defendant-Appellant.

No. 24020.

Supreme Court of Idaho,

Boise, November 1998 Term.

April 2, 1999.

Rehearing Denied July 7, 1999.

Nevin, Herzfeld & Benjamin, Boise, for appellant. Dennis K. Benjamin argued.

Hon. Alan G. Lance, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.

WALTERS, Justice.

This is an appeal from the denial of Antonio Avelar's "Motion to Dismiss or, in the Alternative, For A New Trial," which was brought after this Court upheld his conviction for delivery of a controlled substance. We affirm the district court's denial of Avelar's motion.

BACKGROUND AND PRIOR PROCEEDINGS

A jury found Avelar guilty of delivery of a controlled substance (cocaine) on March 1, 1991. The Court of Appeals reversed, State v. Avelar 124 Idaho 317, 859 P.2d 353 (Ct.App.1993) (Avelar I ), and Avelar was retried on March 29, 1994. Again, the jury found Avelar guilty. The trial court denied Avelar's post-trial motions for acquittal and for a new trial, and sentenced him to the custody of the Board of Corrections for ten years, with two years fixed as a minimum term of confinement.

In a separate proceeding initiated shortly after Avelar's first trial, the Idaho State Tax Commission assessed $49,200 in taxes and penalties ¹ under Idaho's drug stamp act. ² Two weeks later the Commission filed a Notice of Tax Lien on Avelar's property. In April 1995, while the appeal from his second trial was pending, Avelar settled with the Tax Commission by paying $1223.98.

The Court of Appeals, and ultimately this Court, affirmed Avelar's criminal conviction in the second trial. State v. Avelar 129 Idaho 700, 931 P.2d 1218 (1997) (Avelar III ) aff'g 129 Idaho 704, 931 P.2d 1222 (1996) (Avelar II ). However, Avelar has not yet served any of the imposed prison sentence. Before the execution of his sentence, Avelar filed another Motion to Dismiss or, in the Alternative, for a New Trial. Avelar now appeals from the district court's denial of this motion. Avelar's appeal raises the following issues:

1. Would the execution of Avelar's sentence after he paid the drug stamp tax violate the multiple punishments bar of either the state or federal constitutions?

2. Did the district court abuse its discretion by denying Avelar's Rule 34 motion for a new trial?

3. Did the district court abuse its discretion by denying Avelar's Rule 48 motion to dismiss in the interests of justice?

I. DOUBLE JEOPARDY

Avelar argues that the execution of his sentence after he has already paid the drug stamp tax would be a double punishment in violation of the double jeopardy provisions in the Constitutions of the State of Idaho and the United States. We disagree.

The prohibition against double jeopardy encompasses both multiple prosecutions and multiple punishments for the same offense. State v. Pizzuto, 119 Idaho 742, 756, 810 P.2d 680, 694 (1991); United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993); North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). The multiple prosecution component of double jeopardy "ensures that the State does not make repeated attempts to convict an individual, thereby exposing him to continued embarrassment, anxiety, and expense, while increasing the risk of an erroneous conviction or an impermissibly enhanced sentence." Ohio v. Johnson, 467 U.S. 493, 498-99, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984). The multiple punishment component has been interpreted to provide two different protections. First, this component "is designed to ensure that the sentencing discretion of courts is confined to the limits established by the legislature." Id. at 499, 104 S.Ct. 2536. It thus prohibits the imposition of a sentence in excess of that authorized by the legislature. Second, in U.S. v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), the United States Supreme Court extended this aspect of double jeopardy to prohibit punishments imposed in separate proceedings even when authorized by the legislature.

Double jeopardy protection is triggered by the attachment of jeopardy. Crist v. Bretz, 437 U.S. 28, 32-33, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978). In this case, jeopardy attached when the jury was sworn to hear Avelar's first criminal trial. State v. Stevens, 126 Idaho 822, 892 P.2d 889 (1995).

In Avelar II, the Court of Appeals rejected Avelar's contention that his second trial violated his double jeopardy protections. The Court of Appeals rejected Avelar's contention under the United States Constitution because Avelar's first trial was reversed for prosecutorial misconduct, and "retrial following the reversal of a conviction on grounds other than the insufficiency of the evidence does not offend double jeopardy principles." Avelar II at 706, 931 P.2d at 1224. The Court of Appeals rejected Avelar's argument that the Idaho Constitution provides greater protection because Avelar raised the issue for the first time on appeal. Idaho Criminal Rule 16(b)(6) provides that all double jeopardy challenges must be raised prior to trial. The failure to make a timely motion to dismiss bars a defendant from asserting that theory on appeal. Avelar II at 706, 931 P.2d at 1224.

Avelar now challenges the execution of the sentence imposed in that second trial. Avelar argues that he should be able to challenge the execution of the sentence, although he was unable to challenge the trial itself, because of the intervening payment of the drug stamp tax. Since any double jeopardy challenge that existed prior to the beginning of Avelar's second trial was waived under I.C.R 16(b)(6) as recognized in Avelar II, Avelar's current contention is dependent upon a distinction between the attachment of jeopardy in the context of punishment and the attachment of jeopardy in the context of prosecution. Avelar argues that although jeopardy may have attached in this case in the prosecution context, jeopardy did not attach in the punishment context until Avelar paid the drug stamp tax. Thus, Avelar contends that his current double jeopardy challenge did not exist before trial; it could not have been raised until jeopardy attached in the punishment context.

In support of his position, Avelar relies upon U.S. v. Von Moos, 660 F.2d 748 (9th Cir.1981). In Von Moos the defendant committed Jeopardy attaches in the double punishment context when the defendant begins serving the sentence. See United States v. Ford 632 F.2d 1354, 1380 (9th Cir.1980). Because Von Moos has not begun serving a sentence pursuant to the challenged order, jeopardy has not attached. If we were to reverse and remand for sentencing, the sentence on remand would not constitute double jeopardy.

perjury during his trial for bank robbery. The judge considered the perjury when sentencing the defendant on the bank robbery conviction. When the defendant subsequently pled guilty to perjury, the judge entered an order stating that he had no legal authority to sentence the defendant for perjury because the perjury was used to enhance his sentence for bank robbery. On appeal, the Ninth Circuit first noted that

Von Moos, 660 F.2d at 749. The court then reversed and remanded the case for sentencing holding that considering perjury in sentencing does not implicate double jeopardy.

In Ford, the case relied upon in Von Moos, the trial court sentenced the defendant, and he was then released on bail. Two days later the defendant was returned to court, his sentence was vacated, and he was resentenced to correct an error that the judge perceived in the sentence and to "conform to [the judge's] original intent." Ford, 632 F.2d at 1379-80. In response to the defendant's double jeopardy argument, the Ninth Circuit held that "the mere pronouncement of the first sentence [did not] place[ ] Armstrong in jeopardy so as to make that first sentence uncorrectable.... [A] district judge may promptly act to correct a misspoken sentence when the defendant has not started serving that sentence." Ford, 632 F.2d at 1380. Relying upon Von Moos, Avelar argues that jeopardy does not attach in the punishment context until the sentence has been executed.

Avelar's reliance upon Von Moos is misplaced. The cases upon which Von Moos relies, including Ford, are no longer sound law. See U.S. v. Groceman, 882 F.Supp. 976 (E.D.Wash.1995). Furthermore, the Ninth Circuit has recently rejected Von Moos and Ford in a case that is factually similar to Avelar's. In U.S. v. Faber, 57 F.3d 873 (9th Cir.1995), the defendant entered a conditional plea of guilty to conspiracy in February. In March, the defendant executed a Settlement Agreement in a civil forfeiture proceeding that had been instituted along with the criminal charge. The defendant then challenged the court's attempt to sentence him on the criminal charge because jeopardy attached first in the civil proceeding. The court held that jeopardy attached when the defendant entered his guilty plea and that the question of whether the civil forfeiture proceeding violated double jeopardy was not before it. In a footnote, the court stated:

Faber contends that jeopardy does not attach in a criminal case until a defendant begins serving the sentence imposed. Faber cites [Von Moos ] for support. That case and the Ninth Circuit case upon which it relies,[Ford ], dealt with the issue of double punishment in the context of deciding whether a convicted criminal could be resentenced and given additional punishment once the original sentence had begun. These cases are not applicable here.

Faber, 57 F.3d at 874. The First Circuit also rejected a similar argument in U.S. v. Pierce, 60 F.3d 886 (1st Cir.1995).

Although he does not say so explicitly, Pierce implies that a criminal defendant should have the right to withhold objection to a forbidden successive prosecution and raise a double jeopardy argument...