State v. Allbee, No. 17562

• Court: Court of Appeals of Idaho
• Writing for the Court: PER CURIAM
• Citation: 115 Idaho 845,771 P.2d 66
• Decision Date: 22 March 1989
• Docket Number: No. 17562
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Franklin Eldrick ALLBEE, Defendant-Appellant.

Page 66

771 P.2d 66 115 Idaho 845 STATE of Idaho, Plaintiff-Respondent,
v.
Franklin Eldrick ALLBEE, Defendant-Appellant. No. 17562. Court of Appeals of Idaho. March 22, 1989.

Bruce H. Greene, Sandpoint, for defendant-appellant.

Jim Jones, Atty. Gen., A. Rene Fitzpatrick, Deputy Atty. Gen., Boise, for plaintiff-respondent.

Page 67

[115 Idaho 846] PER CURIAM.

This is an appeal from an order denying a motion to reduce a sentence of three years, with a minimum confinement period of eighteen months, for driving under the influence (DUI). We affirm.

Following Franklin Allbee's arrest, the prosecutor filed an information charging the DUI as a felony because Allbee had received two other DUI convictions within the preceding five-year period. I.C. § 18-8005(3). Upon his plea of guilty, a judgment of conviction was entered. Although the prosecutor and the presentence investigator recommended a jail sentence followed by probation, Allbee was sentenced to the state Board of Correction for a period of three years. During the eighteen months minimum term of confinement, he cannot be paroled. I.C. § 19-2513. He could have received a five-year maximum sentence. I.C. § 18-8005(3)(a).

After the time had expired for an appeal from the judgment of conviction, Allbee wrote a letter to the district judge who had imposed the sentence. In the letter, Allbee acknowledged that he needed treatment and help dealing with alcohol. He also expressed a desire for a "new start" with his life. The judge treated Allbee's letter as a motion--timely under Rule 35, I.C.R.--to reduce the sentence. However, the judge entered an order declining to reduce the sentence. Allbee brought this appeal.

Allbee does not assert that the sentence he received was unlawful or unauthorized; he challenges only the district judge's exercise of discretion in refusing to reduce the sentence. In this regard, we note that a motion to reduce a lawful sentence essentially is a plea for leniency, addressed to the sound discretion of the sentencing court, which may be granted if the original sentence was unduly severe. State v. Lopez, 106 Idaho 447, 680 P.2d 869 (Ct.App.1984). On appeal, the lower court's decision to grant or to deny a request for reduction of sentence will not be disturbed in the absence of an abuse of discretion. State v. Sutton, 106 Idaho 403, 679 P.2d 680 (Ct.App.1984). In conducting our review, we consider the entire record and apply the same criteria used for determining the...