State v. DIGGIE

• Decision Date: 24 May 2004
• Docket Number: No. 29198.,29198.
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Marcel James DIGGIE, Defendant-Appellant.
• Court: Idaho Court of Appeals

91 P.3d 1142

140 Idaho 238

STATE of Idaho, Plaintiff-Respondent, v. Marcel James DIGGIE, Defendant-Appellant.

No. 29198.

Court of Appeals of Idaho.

May 24, 2004.

Molly J. Huskey, State Appellate Public Defender; Julie Dawn Reading, Deputy Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney General, Boise, for respondent.

WALTERS, Judge Pro Tem.

Marcel James Diggie pled guilty to burglary of a vehicle. The district court retained jurisdiction for 180 days, and eventually placed Diggie on probation. Subsequently, the court revoked Diggie's probation and ordered his full sentence into execution. Diggie appealed. We affirm the district court's order revoking Diggie's probation because the district court did not have jurisdiction to remove Diggie from the custody of the Department of Correction and to grant him probation in the first instance.

I. FACTUAL AND PROCEDURAL BACKGROUND

In May 2001, Diggie entered a vehicle belonging to another person and took several items. The owner confronted Diggie, who fled the scene of the burglary. The owner called the police and Diggie was apprehended shortly thereafter. In July, Diggie pled guilty to burglary, a felony violation of Idaho Code § 18-1401, in exchange for dismissal of a persistent violator allegation. In late August, the district court sentenced Diggie to a unified sentence of ten years, with five years determinate. The court retained jurisdiction for 180 days, pursuant to I.C. § 19-2601(4).

Diggie next appeared in court in October 2002, fourteen months after sentence was imposed upon him. The Department of Correction had submitted no recommendation with regard to placing Diggie on probation. The district court suspended the unified sentence and placed Diggie on probation for ten years. As a term of this probation, Diggie was required to reside in the Bannock County jail while waiting for a bed in an inpatient substance abuse program. In early November, a probation officer gave a progress report to the court indicating that Diggie was uncooperative, having refused to initial twelve of the sixteen terms of probation which were expressly stated in the order imposing probation. A hearing was held in late November. At this hearing, the district court warned Diggie to cooperate with the probation office and improve his attitude. However, after the hearing, in the hallway outside the courtroom, a verbal altercation of some kind took place between Diggie and either his former defense counsel, his probation officer or an Idaho State trooper. A hearing was held two days following this altercation. At this hearing, the district court revoked probation and imposed the unified sentence of ten years, with five years determinate, and gave credit for all time served during the retained jurisdiction and probation. Diggie appeals.

II. ANALYSIS

Diggie appeals from the order revoking probation and executing the original sentence, asserting: (1) the district court's findings of fact are incomplete and clearly erroneous; (2) the district court failed to demonstrate that he violated any term or condition of his probation, or committed any other act which justified revoking his probation; and (3) the district court deprived him of due process by the procedure through which his probation was revoked. In reply, the state argues that the district court was without jurisdiction to suspend Diggie's sentence because of the passage of time. The state's argument was not raised below. Generally, issues not raised below may not be considered for the first time on appeal. State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 (1992). However, the question of jurisdiction is fundamental, and may be brought to the court's attention at any time. State v. Lundquist, 134 Idaho 831, 835, 11 P.3d 27, 31 (2000); see also I.C.R 12(b)(2).

Sentence was imposed against Diggie in late August 2001. The care, custody and control of persons convicted of crimes and sentenced to imprisonment is given to the executive branch of the Idaho state government, specifically to the State Board of Correction. See Idaho Const. art. X, § 5; Idaho Code §§ 19-2513; 20-101, -219, -223. This power is subject to legislative law-making authority. Idaho Const. art. X, § 5. Section 19-2601(4) allows the court and the Board to exercise concurrent authority over an offender for a limited period of time. State v. Williams, 126 Idaho 39, 878 P.2d 213 (Ct.App.1994). Accordingly, the district court retained jurisdiction over Diggie pursuant to I.C. § 19-2601(4), which states in relevant part that a court has discretion to:

Suspend the execution of the judgment at any time during the first one hundred eighty (180) days of a sentence to the custody of the state board of correction. The court shall retain jurisdiction over the prisoner for the first one hundred eighty (180) days or, if the prisoner is a juvenile, until the juvenile reaches twenty-one (21) years of age. The prisoner will remain committed to the board of correction if not affirmatively placed on probation by the court.

The statute expressly provides that the court may retain jurisdiction for 180 days and that the prisoner will remain committed to the Board of Correction unless affirmatively placed on probation by the court. It has been long recognized that passage of the 180 days causes the retained jurisdiction to expire. See State v. Ditmars, 98 Idaho 472, 567 P.2d 17 (1977); Belknap v. State, 98 Idaho 690, 571 P.2d 336 (1977). Nevertheless, Diggie argues that although the 180 days did expire, the purpose of the retained jurisdiction program should be considered by this Court. The principal purpose of retained jurisdiction is to provide a period for evaluation of the offender's potential for rehabilitation and suitability for probation. Thorgaard v. State, 125 Idaho 901, 904, 876 P.2d 599, 602 (Ct.App.1994).

By the terms of the statute, the district court's retained jurisdiction would have expired in late February 2002. According to a finding made in the district court's December 6, 2002, order revoking Diggie's probation, "On the 10th day of July, 2002, the Court received a letter from the Idaho Department of Corrections advising that during the [Reception and Diagnostic Unit] process, it was determined that the Defendant's placement at NICI...