State v. Darbin

• Decision Date: 25 October 1985
• Docket Number: No. 15361,15361
• Citation: 109 Idaho 516,708 P.2d 921
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Floyd DARBIN aka Floyd Smart, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 921

708 P.2d 921

109 Idaho 516

STATE of Idaho, Plaintiff-Respondent, v. Floyd DARBIN aka Floyd Smart, Defendant-Appellant.

No. 15361.

Court of Appeals of Idaho.

Oct. 25, 1985.

Van G. Bishop, Nampa, for defendant-appellant.

Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., A. Rene' Fitzpatrick, Deputy Atty. Gen., for plaintiff-respondent.

WALTERS, Chief Judge.

Floyd Darbin was charged with grand theft (receiving stolen property) and with being a persistent violator. A jury found him guilty of the theft offense, and Darbin entered an admission to the persistent violator status. The district court sentenced Darbin to an indeterminate term of nineteen years in the custody of the Board of Correction. On appeal, Darbin raises three issues: the trial court abused its discretion in refusing to grant a continuance when the state was permitted to amend the information three days before trial; he was denied effective assistance of counsel when trial counsel failed to present a defense; and the trial court abused its sentencing discretion. We affirm without deciding the issue relating to effective assistance of counsel. On that issue, we hold it should be pursued through a petition for post-conviction relief, and not on this direct appeal from Darbin's conviction.

The theft charge against Darbin arose under the following circumstances. Curtis Cox was the owner of a 1950 three-quarter ton, GMC pickup truck. The truck was a flatbed with bright red sideboards. Cox was employed as a long-haul truck driver and normally parked his pickup at his employer's place of business when leaving for long-haul trips. In October of 1982 he returned from a trip and found his pickup missing. He reported the missing vehicle to the sheriff's office, as stolen. In January 1983, he recognized his pickup being driven in Canyon County. He attempted to follow the truck. He noticed that the hood, doors, and fenders had been replaced. A sun visor also had been added to the truck. Before the truck sped away, he was able to get the license plate number and subsequently learned it was registered to Floyd Darbin. Cox checked a number of residences listed under "Darbin" and eventually observed Darbin working on the truck at a residence later that same January. Cox returned to the residence with deputy sheriffs and determined that the truck was indeed his. During the time between his previous sighting and locating the truck at the residence, the flatbed had been removed and a pickup bed placed on the GMC. Cox and the deputies then went to another residence where Cox had previously seen a 1948 Chevrolet pickup truck. The parts used to replace the original parts on the GMC were apparently from this Chevrolet pickup. As Cox and the deputies arrived, Darbin and his brother were pulling out of the driveway in another pickup. They were stopped and Cox noticed that two front fenders and the front grill from his GMC were in the back of the departing pickup. The GMC's hood was found behind a haystack on the property. It was later learned that the red sideboards of the original flatbed had been given away by Darbin and burned as firewood by a neighbor.

I

Darbin first contends that he was prejudiced when the state was permitted to amend its information and his motion for continuance was denied. Darbin was arrested and arraigned on a charge of "GRAND THEFT BY RECEIVING STOLEN PROPERTY." The complaint of February 25, 1983, accused him of

wilfully, knowingly, intentionally, unlawfully, and feloniously take, steal, obtain or withhold another's property, to wit: a 1950 GMC pickup truck, owned by CURTIS COX, with the intent to deprive said owner or another of the aforesaid property or to appropriate the same property to said Defendant or a third person. That said Defendant committed the aforementioned theft by receiving, retaining, concealing, obtaining control over, possessing or disposing of the aforesaid stolen property knowing or having reason to believe that the said property was stolen. That said property then and there received, retained, concealed, obtained, possessed or disposed by said Defendant was at the time of a value exceeding ONE HUNDRED FIFTY and No/100THS DOLLARS ($150.00), lawful money of the United States of America.

All of which is contrary to Idaho Code Section 18-2403(4), 18-2408....

After the preliminary hearing, an information was prepared on April 1, 1983, citing the charge as "GRAND THEFT BY RECEIVING STOLEN PROPERTY--FELONY Idaho Code Section 18-2408 18-2403(4)." The information was worded substantially the same as the complaint except for the value amount. The value amount was stated as "not exceeding ONE HUNDRED FIFTY and No/100THS DOLLARS ($150.00), lawful money of the United States of America." (Emphasis added.)

On November 15, 1983, the prosecutor moved to amend the information by deleting the word "not," thus indicating that the truck was valued at more than $150. On November 21, 1983, the prosecutor moved to supplement the amended information by retitling the offense as "GRAND THEFT BY RECEIVING OR POSSESSING STOLEN PROPERTY--FELONY Idaho Code Section 18-2408 18-2403 18-2407(1)(b)." A hearing on the motion to amend the information was held on November 25. Darbin's counsel objected to amending the information but did not present any argument. The amendment was permitted. Darbin's counsel then moved for a continuance based on the amended information but that motion was denied. Trial was held on November 28 and Darbin was found guilty by a jury.

A legally sufficient information is a plain, concise, and definite written statement of the essential facts constituting the offense charged. State v. Owens, 101 Idaho 632, 619 P.2d 787 (1980); State v. Lenz, 103 Idaho 632, 651 P.2d 566 (Ct.App.1982); I.C. §§ 19-1409 to -1418; I.C.R. 7(b). In the discretion of the trial court, an information may be amended after the time the defendant pleads so long as the amendment does not prejudice the defendant's rights. I.C. § 19-1420; State v. LaMere, 103 Idaho 839, 655 P.2d 46 (1982); State v. Ranstrom, 94 Idaho 348, 487 P.2d 942 (1971). In particular, the information must be specific so the defendant may prepare a proper defense and protect himself against subsequent prosecution based on the same conduct. State v. Gumm, 99 Idaho 549, 585 P.2d 959 (1978); U.S. CONST. amend. VI; IDAHO CONST. art. 1, § 13. Darbin argues that his rights were prejudiced when the district court allowed the prosecutor to change the value of the stolen property and the offense citation on the information.

We begin first with the amendment of the property value. In this case, the value of the stolen truck establishes whether the theft is classified as a felony or misdemeanor. I.C. §§ 18-2407, 18-2408. The prosecutor stated that the inclusion of the word "not" in the information was a typographical error. The complaint filed at the outset of this case reflected the value of the stolen truck in excess of $150. When Darbin was arraigned, the court minutes reflect the magistrate

read the complaint and advised the defendant of the maximum penalties.... The Court further advised the defendant that because he is charged with a felony, the magistrate division has no jurisdiction to accept a plea.... The Court determined the defendant understood the charge against him and his rights.

The defendant was represented by counsel at his preliminary hearing where the complaint indicated the value of the pickup truck was over $150. Both the findings of the preliminary hearing and the order binding Darbin over to district court reflect that the charge was grand theft. The complaint, initial information, and amended information all indicated the offense was grand theft.

Although the inclusion of the word "not" significantly changes the nature of the offense, Idaho Code § 19-1419 states: "No indictment is insufficient, nor can the trial, judgment, or other proceeding thereon be affected, by reason of any defect or imperfection in matter of form, which does not tend to the prejudice of a substantial right of the defendant upon its merits." See also State v. Roland, 11 Idaho 490, 83 P. 337 (1905) (the information which indicated the offense was committed at a future date held not prejudicial to defendant). It appears that Darbin was aware that the offense was a felony and amending the information did not prejudice him in preparing a defense.

Second, Darbin asserts prejudice by allowing the offense citation of the information to be amended from "GRAND THEFT BY RECEIVING STOLEN PROPERTY--FELONY" to "GRAND THEFT BY RECEIVING OR POSSESSING STOLEN PROPERTY--FELONY." Idaho Code § 18-2401 consolidated the various species of theft into a single statutory offense. Both the factual statement and the cited statutory section of I.C. § 18-2403(4) in the original information refer to the possession of stolen property. The information states that Darbin committed the offense by "obtaining control over, possessing or disposing of" the truck. (Emphasis added.) "Obtains control" is defined as the taking, carrying away, or the sale, conveyance, or transfer of title to, or interest in, or possession of property. I.C. § 18-2402(5) (emphasis added). Receiving stolen property impliedly connotes that one is in possession of the property. The initial information adequately set out the nature of the offense charged which would enable a person of ordinary understanding to know what is intended. State v. Lenz, 103 Idaho at 634, 651 P.2d at 568; I.C. § 19-1409(2). If the facts constituting the offense are sufficiently stated in the information, the mere giving of an erroneous offense characterization is immaterial. State v. Davidson, 78 Idaho 553, 309 P.2d 211 (1957). Here, the amending information merely redefined the same offense. We find no showing of prejudice to Darbin by allowing the information to be amended three days before his trial.

II

Darbin next contends that he was denied effective...