State v. Brashier

• Decision Date: 12 March 1997
• Docket Number: No. 22823,22823
• Citation: State v. Brashier, 937 P.2d 424, 130 Idaho 112 (Idaho App. 1997)
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Johnny Lynn BRASHIER, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 424

937 P.2d 424

130 Idaho 112

STATE of Idaho, Plaintiff-Respondent, v.Johnny Lynn BRASHIER, Defendant-Appellant.

No. 22823.

Court of Appeals of Idaho.

March 12, 1997.

Severt Swenson, Jr., Gooding, for defendant-appellant.

Alan G. Lance, Attorney General; Catherine O. Derden, Deputy Attorney General, Boise, for plaintiff-respondent.

PERRY, Justice.

This is a sentence review.Charges were brought against Johnny Lynn Brashier as the result of an incident wherein Brashier forced a woman to perform fellatio at knife-point.Brashier entered a conditional plea of guilty to a charge of infamous crime against nature.I.C. § 18-6605.In exchange for the guilty plea, the state dismissed two related charges of kidnapping and assault with a deadly weapon.Brashier appealed from the district court's denial of two motions to dismiss.The state cross-appealed from the sentence imposed, arguing that the district court erred by sentencing Brashier without considering the proper legal standard and by granting excess credit for time served.This Court reviewed the record and affirmed the judgment of conviction and denial of the motions for dismissal.State v. Brashier, 127 Idaho 730, 905 P.2d 1039(Ct.App.1995).We determined that the district court had misunderstood the applicable sentencing provisions and had granted Brashier excess credit for time served.Accordingly, we remanded the case for resentencing.Id.

Upon remand, the district court resentenced Brashier to a fixed term of nine years with credit for 535 days served.Brashier appeals, arguing that he is entitled to additional credit for time served and further claiming that the nine-year term is an abuse of the district court's discretion.

Brashier was serving a sentence for burglary at the state penitentiary when the charges in this case were filed against him.He asserted in his prior appeal that he was denied parole due to suspicion that he was involved in this case and, as such, was entitled to credit for time served as of the date he became a suspect.This Court determined that he was not entitled to credit for time served in that situation.

On appeal, Brashier now argues that he is entitled to credit for time served as of the date the charges were filed against him in this case.Whether the district court properly applied the law governing credit for time served to the facts is a question of law over which we exercise free review.Brashier, 127 Idaho at 738, 905 P.2d at 1047.

An individual is to receive credit in the judgment of conviction for any period of incarceration served prior to the entry of judgment, "if such incarceration was for the offense ... for which the judgment was entered."I.C. § 18-309.This court has previously clarified that:

An entitlement to credit under I.C. § 18-309 depends upon the answer to a simple inquiry: was the defendant's incarceration upon the offense for which he was sentenced?If a particular period of confinement served prior to the imposition of sentence is not attributable to the charge or conduct for which a sentence is to be imposed, the offender is not entitled to credit for such confinement....

State v. Hale, 116 Idaho 763, 765, 779 P.2d 438, 440(Ct.App.1989).In our prior opinion, we answered the critical question, concluding, "Brashier's incarceration in the state penitentiary from May 12, 1993, forward was attributable to his previous conviction for attempted burglary."Brashier, 127 Idaho at 738, 905 P.2d at 1047.

Brashier argues on appeal that he would have been granted parole, but for the investigation and eventual charges relating to this case.As noted above, this issue was already disposed of in Brashier's prior appeal.Although this Court indicated that Brashier was most certainly not entitled to credit for time which was served prior to his even being charged, we in no way indicated that the he was entitled to credit for time served after the charges were filed.Under the facts of this case, Brashier's incarceration was not attributable to the charge of infamous crime against nature until he was initially sentenced for that crime.The sentence he was already serving for burglary and the sentence for the crime in this case then began to run concurrently.Even assuming that the investigation and charges in this case led to the denial of Brashier's parole, his term of...