Butler v. State, 22310

• Court: United States State Supreme Court of Idaho
• Writing for the Court: McDEVITT; TROUT
• Citation: 129 Idaho 899,935 P.2d 162
• Parties: Max BUTLER, Petitioner-Appellant, v. STATE of Idaho, Respondent. Boise, December 1997 Term
• Docket Number: No. 22310,22310
• Decision Date: 01 April 1997

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935 P.2d 162 129 Idaho 899 Max BUTLER, Petitioner-Appellant,
v.
STATE of Idaho, Respondent. No. 22310. Supreme Court of Idaho, Boise, December 1997 Term.
April 1, 1997.

Kehne & Adams, Boise, for appellant. Rolf M. Kehne argued.

Alan G. Lance, Attorney General; John C. McKinney, Deputy Attorney General, Boise, for respondent. John C. McKinney argued.

McDEVITT, Justice.

This case involves a petition for post-conviction relief. Appellant requests relief from his conviction and sentence and entry of a conviction for only a misdemeanor or vacation of the judgment and sentence altogether. We affirm.

I.

FACTS AND PRIOR PROCEEDINGS

On November 8, 1990, a criminal complaint was filed against appellant Max Butler (Butler) alleging Butler committed the crime of aggravated assault, a felony pursuant to I.C. §§ 18-901(a) and 18-905(a). The November 8, 1990 criminal complaint, alleged that Butler attempted to commit a violent injury upon his former girlfriend with a deadly weapon or instrument without intent to kill, by using his hands to choke his former girlfriend around the neck while threatening to kill her.

On November 23, 1990, the magistrate judge entered a commitment stating that Butler would be held to answer to the district

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court for the charge of unlawfully and with apparent ability, attempting to commit a violent injury upon his former girlfriend with a deadly weapon or instrument without intent to kill by using his hands to choke his former girlfriend around the neck while threatening to kill her.

Butler was convicted by a jury of aggravated assault, a felony pursuant to I.C. §§ 18-901(a) and 18-905(a). On May 20, 1991, the district court entered a judgment and commitment, sentencing Butler to the custody of the Idaho State Board of Correction for a fixed and determinate period of confinement of five years. On November 20, 1991, the district court reduced Butler's sentence to a fixed period of confinement of two years followed by an indeterminate period of custody of up to three years.

On December 27, 1991, Butler appealed the district court's November 20, 1991 order. On November 12, 1992, this Court denied appellant's petition for review of the Idaho Court of Appeal's decision which affirmed the district court's November 20, 1991 order. See State v. Butler, 122 Idaho 776, 839 P.2d 43 (Ct.App.1992).

Butler filed a petition for post-conviction relief pursuant to the Uniform Post-Conviction Procedure Act, I.C. §§ 19-4901 through 19-4911. Through newly appointed counsel Butler filed an amended petition for post-conviction relief. Butler's amended petition alleged that the district court lacked jurisdiction since the information failed to state a felony offense. Butler argued that he had ineffective assistance of counsel due to Butler's counsel's failure to raise on direct appeal the issue of whether hands could be a deadly weapon under I.C. § 18-905(a). Butler requested that the district court enter an order vacating the judgment of conviction and sentence and enter an order directing the release of Butler.

The district court denied Butler's petition, ruling that pursuant to I.C. § 19-4901(b), Butler forfeited his right to raise the issue of whether hands could be a deadly weapon under I.C. § 18-905(a), by failing to raise the issue on direct appeal. ¹

Butler filed a motion for reconsideration arguing that the district court did not have jurisdiction and was committing fundamental error by sentencing Butler to the penitentiary for up to five years for a misdemeanor offense. The district court denied Butler's motion for reconsideration and application for post-conviction relief. Butler appealed to this Court.

II.

BUTLER'S APPEAL IS NOT MOOT

Butler testified that his full-term release date was January 1996. Butler has fully served the sentence that was given him on the conviction Butler now challenges. Butler's counsel contended during oral argument that Butler's petition for post-conviction relief is not moot. We agree.

Butler's amended petition for post-conviction relief requested the district court issue an order vacating the judgment of conviction and sentence and enter an order directing the immediate release of Butler. In Butler's appellate brief, Butler states that he "suffers continuing effects of a felony conviction" and that Butler "is entitled to relief from that conviction and sentence." In Smith v. State, 94 Idaho...