State v. Chapa, 12156
Citation | 98 Idaho 54,558 P.2d 83 |
Decision Date | 30 December 1976 |
Docket Number | No. 12156,12156 |
Parties | STATE of Idaho, Plaintiff-Respondent, v. Gilbert CHAPA, Defendant-Appellant. |
Court | United States State Supreme Court of Idaho |
Herman E. Bedke, Burley, for defendant-appellant.
Wayne L. Kidwell, Atty. Gen., Lynn E. Thomas, Deputy Atty. Gen., Jordan P. Smith and David G. High, Asst. Attys. Gen., Boise, for plaintiff-respondent.
On October 27, 1975, the defendant pleaded guilty to an amended information charging him with burglary in the first degree, attempted robbery, and assault with a deadly weapon. The charge of assault with a deadly weapon had been reduced from a charge of assault with a deadly weapon with intent to murder. The judgment and order of conviction was entered on November 24, 1975 with the defendant being sentenced to concurrent terms of 15 years for the crime of burglary in the first degree, 15 years for attempted robbery and 2 years for assault with a deadly weapon.
Appellant assigns as error on appeal that under the facts and circumstances of this case the sentences imposed were unduly harsh and amounted to an abuse of discretion by the district court.
Pronouncement of the sentence to be imposed is within the discretion of the trial court and will not be disturbed on appeal in absence of an abuse of discretion. State v. Mooneyham, 96 Idaho 145, 525 P.2d 350 (1974). However, where there is an abuse of discretion in sentencing, this court will not hesitate to exercise its power to review and reduce the sentence imposed. State v. Hawk, 97 Idaho 1, 539 P.2d 533 (1975).
The sentences imposed in this case are within the statutory limits prescribed by the Idaho State Legislature (See I.C. §§ 18-1403, 16-6503 and 18-906), and when such is the case, the appellant has the burden of showing a clear abuse of discretion, which is dependent on the circumstances of each case. State v. Cunningham, 97 Idaho 650, 551 P.2d 605 (1976); State v. Ogata, 95 Idaho 309, 508 P.2d 141 (1973).
The presentence report in this case indicates that the defendant has three prior felony convictions for first degree burglary (twice) and grand larceny; one probation and one parole, both of which were revoked; five misdemeanor convictions for petit larceny, battery, and three traffic offenses; two penal incarcerations and four jail incarcerations; and additional misdemeanor and felony charges which are pending in Lincoln County. Although a warrant of arrest has been issued on these last mentioned charges, service of...
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...court. State v. Stroup, 101 Idaho 54, 607 P.2d 1328 (1980); State v. Wilson, 100 Idaho 725, 604 P.2d 739 (1979); State v. Chapa, 98 Idaho 54, 558 P.2d 83 (1976). Therefore, a review of the record is appropriate to determine whether abuse of discretion occurred below. See State v. Dillon, 10......
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...... State v. Seifart, 100 Idaho 321, 597 P.2d 44, 45 (1979). Where a sentence is within the statutory limits, an appellant has the burden of showing a clear abuse of discretion on the part of the court imposing the sentence. State v. Chapa,98 [100 Idaho 578] . Page 76. Idaho 54, 558 P.2d 83 (1976). This sentence was within the statutory limits. 6. The appellant attempts to meet his burden of showing abuse of discretion by contending that the court should have granted his motion to have him examined by a ......
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