State v. Harvey, 31732.

• Decision Date: 24 March 2006
• Docket Number: No. 31732.,31732.
• Citation: 132 P.3d 1255,142 Idaho 727
• Parties: STATE of Idaho, Plaintiff-Respondent, v. James HARVEY, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 1255

132 P.3d 1255

142 Idaho 727

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

No. 31732.

Court of Appeals of Idaho.

March 24, 2006.

James D. Harvey, Caldwell, pro se appellant.

Hon. Lawrence G. Wasden, Attorney General; Carol L. Chaffee, Deputy Attorney General, Boise, for respondent.

PERRY, Chief Judge.

James Harvey appeals from the district court's order denying his motion to reconsider the district court's order denying an I.C.R. 35 motion to correct an illegal sentence. We affirm.

I. FACTS AND PROCEDURE

In 1986, Harvey was sentenced to a determinate term of twenty years for lewd conduct with a minor under the age of sixteen. Following a period of retained jurisdiction, on November 10, 1986, the district court placed Harvey on probation for a period of seven years. On September 28, 1989, the state filed a petition alleging that Harvey had violated the conditions of his probation, in part because he had remained away from his place of residence and failed to inform his probation officer that he intended to change his residence. A warrant for Harvey's arrest was issued on the probation violation and was served in another state on December 9, 1989.

Harvey admitted to violating the terms of his probation. On March 9, 1990, the district court continued Harvey's probation and, as a condition thereof, ordered him to serve ninety days in jail. On March 22, the state filed a second petition for probation violation alleging that Harvey had escaped from jail. On March 23, the district court issued a warrant for Harvey's arrest, which was served on October 9, 1991, in another state. On December 6, the district court again ordered that Harvey's probation be continued. On March 24, 1992, the state filed its third petition for probation violation and a warrant was issued for Harvey's arrest. The warrant was served on Harvey in another state on April 15, 1997. On June 17, 1997, the district court revoked Harvey's probation and imposed his original sentence. Thereafter, the district court reduced Harvey's sentence to a determinate term of five years followed by an indeterminate term of fifteen years.

In December 2002, Harvey filed an I.C.R. 35 motion to correct an illegal sentence. Harvey contended that the maximum allowable period of probation at the time he was sentenced in 1986 was five years and therefore his probation expired on November 9, 1991. Alternatively, Harvey contended that, because his probationary period was for seven years and that term was never extended by the district court, his probation expired on November 9, 1993. Under either scenario, Harvey urged that, at the time the district court revoked his probation in June 1997, it lacked jurisdiction to do so.¹

The district court determined that, even assuming Harvey's period of probation could not exceed five years, Harvey was not entitled to relief because the probationary period was tolled during the periods after the district court issued warrants for Harvey's arrest until those warrants were served. The district court concluded that, because the time Harvey spent under probationary supervision was less than five years, the district court had jurisdiction to revoke Harvey's probation in June 1997. The district court therefore denied Harvey's motion. Harvey filed a motion to reconsider, which the district court also denied. This appeal followed.

II. ANALYSIS

Pursuant to Rule 35, the district court may correct an illegal sentence at any time. In an appeal from the denial of a motion under Rule 35 to correct an illegal sentence, the question of whether the sentence imposed is illegal is a question of law freely reviewable by the appellate court. State v. Josephson, 124 Idaho 286, 287, 858 P.2d 825, 826 (Ct.App.1993); State v. Rodriguez, 119 Idaho 895, 897, 811 P.2d 505, 507 (Ct.App. 1991). Under the statutory framework that Harvey contends was applicable at the time he was placed on probation, the period of probation could not exceed five years.² See 1986 Idaho Sess. Laws, ch. 311, § 1. For the purposes of argument, the district court accepted Harvey's assertion that the five-year limitation applied. Relying on State v. Duncan, 15 Or.App. 101, 514 P.2d 1367 (1973), the district court determined that the five-year limitation controlled the aggregate period of probation that the court could grant either in the first instance or by continuations and extensions.

On appeal, Harvey contends that, because Idaho statutes do not specifically indicate that the period of probation is tolled while the probationer is absent from supervision, the district court erred by tolling his probationary period. Harvey also asserts that tolling extended his probation without notice and hearing in violation of his right to due process.

A. Statutory Construction

At any time during probation, the court may issue a warrant for violation of any of the conditions of probation and cause the defendant to be arrested. I.C. § 20-222. Thereupon, the court may revoke or continue probation. I.C. § 20-222. Harvey argues that, because his probationary period expired in November 1991, the district court was without jurisdiction to issue the third warrant for his arrest in 1992 or to revoke his probation in 1997.

This Court exercises free review over the application and construction of statutes. State v. Reyes, 139 Idaho 502, 505, 80 P.3d 1103, 1106 (Ct.App.2003). Where the language of a statute is plain and unambiguous, this Court must give effect to the statute as written, without engaging in statutory construction. State v. Rhode, 133 Idaho 459, 462, 988 P.2d 685, 688 (1999); State v. Burnight, 132 Idaho 654, 659, 978 P.2d 214, 219 (1999); State v. Escobar, 134 Idaho 387, 389, 3 P.3d 65, 67 (Ct.App.2000). The language of the statute is to be given its plain, obvious, and rational meaning. Burnight, 132 Idaho at 659, 978 P.2d at 219. If the language is clear and unambiguous, there is no occasion for the court to resort to legislative history or rules of statutory interpretation. Escobar, 134 Idaho at 389, 3 P.3d at 67. When this Court must engage in statutory construction, it has the duty to ascertain the legislative intent and give effect to that intent. Rhode, 133 Idaho at 462, 988 P.2d at 688. To ascertain the intent of the legislature, not only must the literal words of the statute be examined, but also the context of those words, the public policy behind the statute, and its legislative history. Id. It is incumbent upon a court to give a statute an interpretation, which will not render it a nullity. State v. Beard, 135 Idaho 641, 646, 22 P.3d 116, 121 (Ct.App.2001). Constructions of a statute that would lead to an absurd result are disfavored. State v. Doe, 140 Idaho 271, 275, 92 P.3d 521, 525 (2004); State v. Yager, 139 Idaho 680, 690, 85 P.3d 656, 666 (2004).

Whether the probationary period is tolled while a probationer is absent from probationary supervision is an issue of first impression for Idaho courts. Accordingly, we examine decisions from other jurisdictions, which have considered tolling of the probationary period. As a general principle, a probationary period is tolled while the probationer is not subject to the jurisdiction of the court. City of Spokane v. Marquette, 146 Wash.2d 124, 43 P.3d 502, 505 (2002). Idaho Code Section 20-222 does not explicitly provide for such tolling of the probationary period. Nevertheless, contrary to Harvey's assertion, we do not find the lack of explicit statutory tolling language to be controlling.

In United States v. Crane, 979 F.2d 687 (9th Cir.1992), the defendant contended that, because the relevant statute did not indicate supervised release could be revoked so long as proceedings were initiated during the supervisory period, the tolling rule could not be applied to his case. The Ninth Circuit Court of Appeals concluded that such specific language was not required to toll a period of parole or supervised release while the defendant was in fugitive status. See id, 979 F.2d at 691. The court determined that to hold otherwise would reward those who flee from bench warrants and maintain their fugitive status until expiration of the original term of supervised release. Id.

In a case factually similar to Harvey's, State v. Hackett, 363 S.C. 177, 609 S.E.2d 553 (Ct.App.2005), the defendant was placed on a five-year period of probation. Thirteen months later, the defendant violated his probation and a warrant was issued for his arrest, which was served approximately three and one-half years later. Following a hearing on the probation violation, the trial court continued the defendant's probation and ordered that the probationary period be tolled from the issuance of the arrest warrant until the date of the hearing. Shortly thereafter, another arrest warrant was issued for probation violation and, approximately two years later, the trial court again continued the defendant's probation. Four months later, a third arrest warrant was issued and the court revoked the defendant's probation.

On appeal, the defendant argued that his probation had expired five years from the date he was placed on probation and that the trial court erred by tolling the probationary period. The appellate court noted that, although the relevant statute did not specifically authorize tolling of probation, neither did it prohibit tolling of the probationary period. Hackett, 609 S.E.2d at 554-55. The court stated that it would be unreasonable to conclude that a probationer could violate conditions of probation and keep the clock running at the same time, thereby annulling both the principle and purpose of probation. Id. at 556. The court further concluded that it would lead to an absurd result to allow a probationer who is initially spared from revocation of probation to then abscond from supervision and to escape any further punishment, free and clear of all consequences, as long as he or she manages to elude...