State v. Camarillo, 17567
| Decision Date | 27 June 1989 |
| Docket Number | No. 17567,17567 |
| Citation | 775 P.2d 1255,116 Idaho 413 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Sammy CAMARILLO, Defendant-Appellant. |
| Court | Idaho Court of Appeals |
Sammy Camarillo, pro se.
Jim Jones, Atty. Gen. by Michael Kane and Roger Lee Gabel, Deputy Attys. Gen., Boise, for plaintiff-respondent.
This appeal comes to us from an order denying a motion to correct an allegedly illegal sentence under Idaho Criminal Rule 35. Sammy Camarillo is serving a twenty-year indeterminate sentence for second degree murder, enhanced by an additional indeterminate period of ten years for using a firearm during commission of the crime. The sole issue is whether the sentence imposed was illegal because the district judge characterized the ten-year enhancement as a "consecutive" sentence. Although we disapprove of this terminology, we hold that it does not render the sentence illegal. Therefore, we affirm.
The term "consecutive" is inappropriate when referring to a sentence enhancement for use of a firearm. It may connote, inaccurately, the existence of two separate sentences. It is well established in our case law that, regardless of the terminology employed, a firearm enhancement is part of a single sentence. Although we require the enhancement to be specifically identified for possible appellate review, "the base sentence and the enhancement should be construed as one continuous sentence." State v. Vega, 113 Idaho 756, 757, 747 P.2d 778, 779 (Ct.App.1987). See also State v. Saykhamchone, 112 Idaho 1128, 739 P.2d 427 (Ct.App.1987); State v. Money, 109 Idaho 757, 710 P.2d 667 (Ct.App.1985).
Accordingly, we have held that the mere choice of an inappropriate word does not give rise to Rule 35 relief, absent a showing that it has caused the enhanced sentence to be administered improperly. State v. Vega, supra. Here, Camarillo has asserted in his appellate brief that the Commission of Pardons and Parole will require him to serve the twenty-year base term until it expires, and then to commence serving the ten-year enhancement, before he will receive parole consideration. However, no factual showing to this effect was made to the district judge. It is in the trial court, not in an appellate court, that factual assertions must be made and proven. Pro se litigants are not exempt from this requirement.
We note that the record does contain a copy of a memorandum, written by a deputy attorney general in 1986, acknowledging that enhancements are not "consecutive" sentences but suggesting that any language problems in sentences may be resolved only by...
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State v. Alsanea
...Id. The term "consecutive" is inappropriate when referring to a sentence enhancement for use of a firearm. State v. Camarillo, 116 Idaho 413, 414, 775 P.2d 1255, 1256 (Ct.App.1989). It may connote, inaccurately, the existence of two separate sentences. Id. It is well established that, regar......
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Williams v. Blades
...E-2 at 8-10.) That motion was denied. (Id. at 37-43.) Petitioner appealed, contending (a) that, under State v. Caramillo, 116 Idaho 413, 775 P.2d 1255, (Idaho Ct. App. 1989), the sentencing judge improperly described the firearm enhancement as a consecutive sentence, (b) that the fixed port......
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Lake v. Newcomb, 29028.
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...sentence. ... "[T]he base sentence and the enhancement should be construed as one continuous sentence." State v. Camarillo, 116 Idaho 413, 414, 775 P.2d 1255, 1256 (Ct.App.1989), quoting State v. Vega, 113 Idaho 756, 757, 747 P.2d 778, 779 (Ct.App.1987). Because I.C. § 19-2520G provides for......