State v. Covert
| Decision Date | 14 June 2006 |
| Docket Number | No. 31988.,31988. |
| Citation | 143 Idaho 169,139 P.3d 771 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Timothy M. COVERT, Defendant-Appellant. |
| Court | Idaho Court of Appeals |
Molly J. Huskey, State Appellate Public Defender; Diane M. Walker, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Thomas R. Tharp, Deputy Attorney General, Boise, for respondent.
Timothy M. Covert appeals from the district court's order denying his motion for credit for time served. We reverse and remand.
In December 2003, Covert pled guilty to possession of methamphetamine. I.C. § 37-2732(c)(1). The district court sentenced Covert to unified term of seven years, with a minimum period of confinement of three years. The district court retained jurisdiction for 180 days. After Covert successfully completed the retained jurisdiction program, the district court suspended Covert's sentence and placed him on probation for a period of four years.
On January 25, 2005, Covert's probation officer discovered marijuana and a methamphetamine pipe in Covert's car and other paraphernalia in Covert's bedroom. The probation officer requested the assistance of a police officer, who arrested Covert for possession of a controlled substance and possession of drug paraphernalia. Covert was also arrested at the same time on an agent's warrant. On January 27, the probation officer filed a report alleging Covert had violated the terms of his probation. The probation officer indicated that Covert was being held in jail on an agent's warrant1 and requested that the district court issue a bench warrant to replace the agent's warrant. On February 2, the district court issued a bench warrant, which was served on Covert on February 7. Covert admitted to violating the terms of his probation. On March 14, the district court revoked Covert's probation and imposed the previously suspended sentence.
Covert filed a motion for credit for time served. Covert alleged that he was entitled to credit for various periods of incarceration, which the district court granted. Covert also alleged that he was entitled to credit for the period between January 25 and March 14. The district court denied Covert's motion as to that period, concluding that "the Idaho Appellate Courts have ruled there shall be no credit given for time served in custody on probation violation." Covert appeals.
Whether the district court properly applied the law governing credit for time served is a question of law over which we exercise free review. State v. Brashier, 130 Idaho 112, 113, 937 P.2d 424, 425 (Ct.App. 1997). We defer to the trial court's findings of fact, however, unless those findings are unsupported by substantial and competent evidence in the record and are therefore clearly erroneous. State v. Davis, 139 Idaho 731, 734, 85 P.3d 1130, 1133 (Ct.App.2003).
If a probationer has been arrested for a probation violation, the defendant's incarceration from the time of service of the bench warrant will count as part of the sentence. See I.C. § 19-2603; State v. Lively, 131 Idaho 279, 280, 954 P.2d 1075, 1076 (Ct. App.1998). Thus, a defendant is entitled to credit for those periods of incarceration prior to disposition of a probation violation allegation, which were not served voluntarily as a condition of probation. Lively, 131 Idaho at 280-81, 954 P.2d at 1076-77. However, a defendant is not entitled to credit for time served after the commencement of probation if the incarceration was imposed as a condition of probation. State v. Banks, 121 Idaho 608, 610, 826 P.2d 1320, 1322 (1992); State v. Buys, 129 Idaho 122, 125-26, 922 P.2d 419, 422-23 (Ct.App.1996).
Covert contends that he was incarcerated as a result of the agent's warrant and, thus, he is entitled to credit for time served from January 25 until his sentence was imposed on March 14. The state concedes that Covert is entitled to credit for time served for the period of incarceration prior to disposition...
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