State v. Arambula, 12001

CourtUnited States State Supreme Court of Idaho
Writing for the CourtMcFADDEN; DONALDSON, SHEPARD and BAKES, JJ., and HAGAN
Citation97 Idaho 627,550 P.2d 130
PartiesSTATE of Idaho, Plaintiff-Respondent, v. Roy ARAMBULA, Defendant-Appellant.
Docket NumberNo. 12001,12001
Decision Date20 May 1976

Page 130

550 P.2d 130
97 Idaho 627
STATE of Idaho, Plaintiff-Respondent,
Roy ARAMBULA, Defendant-Appellant.
No. 12001.
Supreme Court of Idaho.
May 20, 1976.

Page 131

[97 Idaho 628] Bennett & Frachiseur, Twin Falls, for defendant-appellant.

Wayne L. Kidwell, Atty. Gen., Lynn E. Thomas Deputy Atty. Gen., James F. Kile, Asst. Atty. Gen., Boise, for plaintiff-respondent.

McFADDEN, Chief Justice.

Defendant Roy Arambula was charged by information with two counts of delivery of a controlled substance (cocaine), and with one count of possession of a controlled substance (cocaine). These charges all constitute felonies. I.C. §§ 37-2732(a)(1)(A), 2732(c)(1). He pleaded guilty to all counts. A presentence investigation report was prepared and submitted to the court. 1

At the sentencing hearing the trial court inquired if the defendant had seen the presentence report, and was advised he had seen it. Defendant's counsel called attention to an incorrect item in the report and it was corrected. Defendant requested that he be placed on probation, and after hearing arguments presented by counsel for the defendant and the state, the trial court sentenced the defendant to ten years on each delivery count, the sentences to be served concurrently, and to a three year term on the possession count, to be served consecutively to the other sentences.

The defendant later filed a motion pursuant to Rule 35 of the Idaho Rules of

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[97 Idaho 629] Criminal Procedure to reconsider the sentence imposed. At the hearing on this motion the State moved to quash defendant's motion to reconsider the sentence, on the grounds that the appropriate relief for the defendant was by petition for post conviction relief. The trial court granted this motion; however, the trial court after hearing further argument did modify the sentence imposed by changing the three year sentence on the possession count to a concurrent sentence to be served at the same time as the other sentences.

The State, in its brief, moved to dismiss this appeal on the grounds that: (1) the defendant's motion to reduce the sentence was not made a part of this record on appeal; (2) no formal objection was made for the record preserving a contention of overlapping chages; 2 (3) this appeal was from a superceded order of conviction and commitment. 3 The State does not argue that it was prejudiced by defendant's alleged procedural errors and under these circumstances the motion to dismiss is denied. See, I.C.R. 52; Supreme Court Appellate Rule 14; Fairchild v. Olsen, 96 Idaho 338, 528 P.2d 900 (1974).

In his first of three assignments of error, defendant contends the trial court erred in quashing his motion for reduction of sentence, since it was properly brought under Rule 35 of the Idaho Rules of Criminal Procedure. Even though we do not have a copy of defendant's motion in this record, from the brief it can be gleaned that the motion was based on I.C.R. 35, which provides:

'Correction or reduction of sentence.-The court may correct an illegal sentence at any time and may correct a sentence that has been imposed in an illegal manner within the time provided herein for the reduction of sentence. The court may reduce a sentence within 120 days after the sentence is imposed, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order of judgment of the Supreme Court denying review of, or having the effect of upholding a judgment of conviction. The court may also reduce a sentence upon revocation of probation as provided by law.'

According to Wright, Federal Practice and Procedure, this rule is applicable to three different situations: 4

'The rule speaks to three distinct matters. It provides a procedure for correction of an...

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