State v. Buys

• Decision Date: 05 August 1996
• Docket Number: No. 22149,22149
• Citation: 922 P.2d 419,129 Idaho 122
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Jay A. BUYS, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 419

922 P.2d 419

129 Idaho 122

STATE of Idaho, Plaintiff-Respondent, v. Jay A. BUYS, Defendant-Appellant.

No. 22149.

Court of Appeals of Idaho.

Aug. 5, 1996.

Jay A. Buys, Boise, pro se appellant.

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

LANSING, Judge.

This appeal presents a question of first impression: does time served in confinement as a condition of probation when a trial court in a criminal case withholds judgment and places the defendant on probation, constitute "incarceration prior to entry of judgment," for which a defendant is entitled to credit against a later-imposed sentence pursuant to I.C. § 18-309?

After a period of probation on a withheld judgment, Jay A. Buys was convicted and sentenced to a period of incarceration in the custody of the State Board of Correction. He asserts that he is entitled to credit against his sentence for one year of incarceration served as a condition of probation when the trial court initially withheld judgment and for two subsequent periods spent in the county jail upon his arrest for probation violations. We conclude that Buys is entitled to credit for time served following one arrest for an alleged probation violation, but that he may not receive credit against his sentence for the period of incarceration that was served solely as a condition of his probation.

PROCEDURAL BACKGROUND

This case began when Buys was arrested in July 1988 for delivery of a controlled substance, I.C. § 37-2732. In January 1989, Buys pleaded guilty, and the district court entered an order withholding judgment pursuant to I.C. § 19-2601(3) ¹ and placing Buys on probation for five years. As one of the conditions of his probation, Buys was required to serve one year of incarceration, with credit for 183 days that he had already spent in jail following his arrest. The court specified that this period of incarceration would be served concurrently with a sentence of one and one-half to three years that Buys was then serving in the state of Wyoming.

Upon Buys' release from the Wyoming penitentiary, he was released on probation in the present case.

On June 7, 1991, Buys was arrested and arraigned on a charge of statutory rape. On the same day the district court in the present case issued an "order for incarceration" requiring that Buys serve thirty days' "discretionary time" in jail. The discretionary time was ordered because Buys had been charged with statutory rape. The order further stated Ultimately, Buys entered into a plea agreement by which he agreed to plead guilty to the statutory rape charge and, in return, the State dismissed the probation violation report in the present case. Consequently, no evidentiary hearing was conducted on the probation violation report. In the rape case, the district court entered a judgment of conviction but retained jurisdiction for 180 days and, thereafter, suspended Buys' sentence and placed him on probation.

that Buys' probation officer was conducting an investigation of the incident and that a probation violation report would be filed thereafter. A violation report was filed on July 2, 1991. It asserted a probation violation other than the statutory rape. Specifically, it alleged that Buys had not complied with a schedule prepared by his probation officer that governed Buys' time for employment, community service, curfew and free time. Based upon this alleged probation violation, a bench warrant was issued on July 8, 1991, and bond was set at $10,000. Meanwhile, in the rape case that was proceeding simultaneously, Buys entered into a stipulation with the prosecutor that the $10,000 bond set in the present case could be utilized as the bond in the rape case, so that one bond of $10,000 would suffice for both. Buys asserts that he spent thirty-two days in jail between the date of the district court's order for incarceration (which was also the date of his arrest for statutory rape) and the date that he was released upon posting bond in both cases.

On November 10, 1993, an order of incarceration was entered in the rape case directing that Buys be incarcerated for forty-five days as discretionary time because Buys had struck his wife on three occasions, was not successfully completing counselling and had repeatedly failed to follow the directives of his probation officer by changing residences without permission and incurring unnecessary indebtedness.

On December 23, 1993, a report of probation violation was filed in the rape case, alleging that Buys had violated the terms of his probation in that case by: failing to participate in good faith in his sex offender treatment program, which led to his being expelled from the program; persistently making advances toward a sixteen-year-old girl; and using cocaine. A report dated December 28, 1993, alleging the same probation violations was filed in the present case. A bench warrant ordering Buys' arrest for these probation violations was issued in the present case on January 6, 1994. Buys denied the probation violations in both cases, and a consolidated evidentiary hearing on the alleged violations was conducted. The district court found that the violations had occurred as reported and, as a consequence, on April 4, 1994, the court revoked Buys' probation in both cases.

The court, which had theretofore withheld judgment in the present case, entered a judgment of conviction and sentenced Buys to the custody of the State Board of Correction for a unified term of ten years with a minimum period of confinement of three years. Buys received credit for 284 days of prior incarceration. This included 183 days served between Buys' initial arrest and the entry of the January 1989 order withholding judgment, and 96 days served following his arrest for the final probation violation. ²

In February 1995, Buys filed in this case a motion for additional credit for time served. He requested credit for the one year of incarceration imposed as a condition of his probation when the court withheld judgment, and for the entire period of his imprisonment in Wyoming, 635 days. He also sought credit for thirty-two days he spent in jail in June and July 1991 based upon the court's June 7, 1991 order for incarceration. Finally, he argued that credit should also be given for forty-five days served in November and December 1993, pursuant to the court's November 12, 1993 order for incarceration in the rape case.

In ruling upon the motion, the district court observed that, of the one-year jail term imposed as part of the order withholding judgment, Buys had already received credit On appeal, Buys no longer claims credit for his Wyoming imprisonment in excess of the one year imposed as a condition of his probation, but continues to assert a right to credit for that one year and the subsequent confinements served on the district court's orders of incarceration of June 7, 1991 and November 10, 1993. We will consider each of these periods of incarceration in turn.

for 183 days served between his arrest and the order withholding judgment, so only the balance of 182 days served concurrently with Buys' Wyoming sentence was actually at issue. As to that remaining 182 days, the court relied upon the holding in State v. Banks, 121 Idaho 608, 826 P.2d 1320 (1992), that a defendant whose probation has been revoked is not entitled to credit against his sentence for time spent in jail as a condition of probation. The court held that the 182 days that was served in Wyoming to complete the one-year jail term was a condition of probation to which Buys was not entitled to credit. The district court also concluded that the periods of incarceration in June and July 1991, and November and December 1993, were "discretionary time" served as conditions of probation and could not be applied to Buys' sentence. Finally, the district court held that the time in excess of 182 days that Buys served in the Wyoming penitentiary was not incarceration related to the Idaho charges and therefore could not be credited. Accordingly, the court denied any additional credit for time served in this case.

ANALYSIS

A. One-year Confinement Imposed as a Condition of Probation

Buys' claim for additional credit against his sentence is predicated upon I.C. § 18-309, which states:

In computing the term of imprisonment, the person against whom the judgment was entered, shall receive credit for any period of incarceration prior to entry of judgment, if such incarceration was for the offense or an included offense for which the judgment was entered. The remainder of the term commences upon the pronouncement of sentence and if thereafter, during such term, the defendant by any legal means is temporarily released from such imprisonment and subsequently returned thereto, the time during which he was at large must not be computed as part of such term.

This Court has observed that, "the language of I.C. § 18-309 is mandatory, and requires that in sentencing a criminal defendant, the sentencing judge give the appropriate credit for pre-judgment incarceration." State v. Rodriguez, 119 Idaho 895, 897, 811 P.2d 505, 507 (Ct.App.1991). Buys argues that because the district court withheld judgment in this case until April 4, 1994, when his probation was revoked and a judgment of conviction entered, all of the incarceration prior to that date was "pre-judgment incarceration" for which credit is mandated by I.C. § 18-309.

As the district court recognized, this issue requires consideration of the Idaho Supreme Court's holding in State v. Banks, supra. In that case, Banks was convicted of statutory rape, and an indeterminate five-year sentence was imposed. However, the sentence was suspended and Banks was placed on probation. One of the conditions of probation was that he serve nine months in jail, with credit for 239 days he spent in jail prior to sentencing. Banks served the thirty-four days remaining on the nine-month...