State v. Case
| Decision Date | 24 June 1987 |
| Docket Number | No. 16582,16582 |
| Citation | 739 P.2d 435,112 Idaho 1136 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Robert E. CASE, Jr., Defendant-Appellant. |
| Court | Idaho Court of Appeals |
Van G. Bishop, Nampa, for defendant-appellant.
Jim Jones, Atty. Gen., David R. Minert, Deputy Atty. Gen., Boise, for plaintiff-respondent.
This is an appeal from an order revoking probation. Robert Case admitted violating the terms of his probation by using marijuana and by failing to comply with restrictions relating to an intensively supervised probation program. On appeal, Case contends the district court abused its discretion by not ordering additional counseling and treatment instead of revoking probation. He also asserts that the district judge showed bias against him. For reasons explained below, we conclude that the district judge did make some unfortunate statements concerning Case, but that these statements did not render the proceedings as a whole unfair, nor did they lead to an inappropriate result. Accordingly, we affirm the district court's order.
The following facts appear in the record. Case pled guilty to first degree burglary and was sentenced to a five-year term in prison with the district court retaining jurisdiction for 120 days. He had a prior record of juvenile and adult offenses. Apparently deeming him to be an escape risk, the Board of Correction kept Case at the "main yard" of the Idaho State Correctional Institute near Boise, rather than sending him to the usual evaluation facility at Cottonwood, Idaho. Nevertheless, his evaluation report was favorable, with the evaluation committee unanimously recommending probation. The district court suspended Case's sentence and placed him on a program of intensive probation in April, 1986. Among other terms of probation, Case was required not to use any controlled substances unless prescribed by a doctor, and he was not to leave or remain away from his residence without permission from his probation officer. Ten days after being placed on probation, Case tested positive for marijuana use. The following month Case began leaving his residence without contacting his probation officer. In June 1986, a report of probation violation was filed, detailing Case's repetitive marijuana use and at least eight unauthorized absences from his residence. At his probation revocation hearing, Case admitted to the reported violations. The district court revoked Case's probation and ordered execution of the five-year sentence, again retaining jurisdiction for 120 days. The court also recommended to the Board of Correction that Case be placed at a facility for treatment of his drug abuse problem. The propriety of ordering a second period of retained jurisdiction has not been challenged by the state.
At the outset, we note that the district court may, in its discretion, revoke probation at any time during the probationary period if the defendant has violated any of the terms of the probation. I.C. § 20-222. In a probation revocation proceeding two questions are posed: (1) did the probationer violate the terms of his probation, and if so, (2) should probation be revoked? State v. Bell, 103 Idaho 255, 646 P.2d 1026 (Ct.App.1982). Here, since Case admitted the violations, no further inquiry of the first question is required. As to the second question, by revoking probation, the district court essentially concluded that probation thus far had not been successful, and that a period of incarceration was necessary to protect society and to enhance the possibility of Case's eventual rehabilitation.
The transcript of the probation revocation hearing reveals that the district court thoroughly reviewed Case's failure to abide by the terms of his probation. The court discussed at length Case's violations and his apparent inability to follow the court's and his probation officer's instructions. Case's response to questions about the drug violations indicated he had continued to associate with friends who used drugs and who made controlled substances available to him. Although Case has directed his argument on appeal primarily toward his alleged drug problem, the district judge noted that Case's probation revocation resulted not only from the drug problem, but also from inability or unwillingness to follow the rules of intensive probation. Moreover, we are unpersuaded by Case's contention that the district court should have ordered enrollment in a drug abuse program as an alternative to incarceration. We note that, when Case admitted to his probation officer that he was using drugs, the officer told him to contact the Port of Hope drug treatment center for inpatient care. Although Case failed to immediately go to that facility when advised to do so, he did later contact the center, but then failed to return for treatment. Case now contends the...
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...are posed: (1) did the probationer violate the terms of probation; and, if so, (2) should probation be revoked? State v. Case, 112 Idaho 1136, 739 P.2d 435 (Ct.App.1987). Then, if the court determines that probation should be revoked, a third question arises--what prison sentence should be ......
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