State v. Izzard

• Decision Date: 27 July 2001
• Docket Number: No. 26949., No. 26557
• Citation: 29 P.3d 960,136 Idaho 124
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Bill IZZARD, Jr., Defendant-Appellant. Bill Izzard, Jr., Petitioner-Appellant, v. State of Idaho, Respondent.
• Court: Idaho Court of Appeals

29 P.3d 960

136 Idaho 124

STATE of Idaho, Plaintiff-Respondent, v. Bill IZZARD, Jr., Defendant-Appellant.

Bill Izzard, Jr., Petitioner-Appellant, v. State of Idaho, Respondent.

Nos. 26557, 26949.

Court of Appeals of Idaho.

July 27, 2001.

Nevin, Herzfeld Benjamin, Boise, for appellant. Dennis A. Benjamin argued.

Alan G. Lance, Attorney General; Karen A. Hudelson, Deputy Attorney General, Boise, for respondent. Karen A. Hudelson argued.

PERRY, Judge

In these consolidated cases, Bill Izzard, Jr., appeals from the district court's orders denying Izzard's motion to withdraw his guilty plea and dismissing his application for post-conviction relief. We affirm.

I. BACKGROUND

On December 23, 1996, Izzard was charged by complaint with battery with intent to commit murder, I.C. §§ 18-903, 18-911, and conspiracy to commit murder, I.C. §§ 18-1701, 18-4001. On January 30, 1997, the state filed the charging information.

On February 3, 1997, Izzard pled guilty to an amended charge of aggravated battery, and the state dismissed the remaining conspiracy charge. On February 14, 1997, an amended information conforming with the plea agreement was filed. On April 24, 1997, the district court sentenced Izzard to a unified term of fifteen years, with a minimum period of confinement of seven and one-half years. Izzard filed an I.C.R. 35 motion for reduction of sentence, which was denied by the district court. In an unpublished opinion, this Court affirmed Izzard's judgment of conviction and sentence and the district court's denial of Izzard's Rule 35 motion. State v. Izzard, 132 Idaho 625, 977 P.2d 239 (1998).

In September 1999, Izzard filed an I.C.R. 33 motion to withdraw his guilty plea based upon two grounds. First, Izzard asserted that the district court was without jurisdiction or authority to accept his plea to aggravated battery because the amended information was not filed before his plea was accepted. Second, Izzard asserted that he was not informed of the nature of the charge against him before he pled guilty in violation of I.C.R. 11(c)(4). The district court concluded that it had jurisdiction to accept Izzard's plea and that Izzard had been aware of the nature of the charge against him. The district court therefore denied Izzard's motion to withdraw his guilty plea.

Simultaneous with his I.C.R. 33 motion, Izzard also filed an application for post-conviction relief asserting that the district court did not have jurisdiction to accept his guilty plea and that Izzard received ineffective assistance of counsel. The district court concluded that it had jurisdiction to accept Izzard's plea and that Izzard did not receive ineffective assistance. The district court therefore dismissed Izzard's application for post-conviction relief.

Izzard appeals, challenging the denial of his motion to withdraw his guilty plea and the dismissal of his application for post-conviction relief on the jurisdictional issue. Izzard does not raise the ineffective assistance claim on appeal. Thus, this Court must determine whether the district court had jurisdiction to accept Izzard's guilty plea and whether Izzard voluntarily and knowingly pled guilty.

II. ANALYSIS

A. Standard of Review

1. Denial of Rule 33(c) Motion

The decision to grant or deny a motion to withdraw a guilty plea lies in the discretion of the district court. State v. McFarland, 130 Idaho 358, 361, 941 P.2d 330, 333 (Ct.App.1997). Appellate review of the denial of a motion to withdraw a plea is limited to whether the district court exercised sound judicial discretion as distinguished from arbitrary action. McFarland, 130 Idaho at 361,941 P.2d at 333. Idaho Criminal Rule 33(c) provides that a "motion to withdraw a plea of guilty may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw defendant's plea." The exercise of the trial court's discretion is affected by the timing of the motion to withdraw the plea. State v. Ballard, 114 Idaho 799, 801, 761 P.2d 1151, 1153 (1988); McFarland, 130 Idaho at 361,941 P.2d at 333. As indicated by Rule 33(c), a motion to withdraw a plea made after sentencing may be granted only to correct a "manifest injustice." Ballard, 114 Idaho at 801,761 P.2d at 1153.

2. Dismissal of Application for Post-conviction Relief

Summary dismissal of an application pursuant to I.C. § 19-4906 is the procedural equivalent of summary judgment under I.R.C.P. 56. Idaho Code Section 19-4906 authorizes summary disposition of an application for post-conviction relief, either pursuant to motion of a party or upon the court's own initiative. Summary dismissal is permissible only when the applicant's evidence has raised no genuine issue of material fact which, if resolved in the applicant's favor, would entitle the applicant to the requested relief. If such a factual issue is presented, an evidentiary hearing must be conducted. Gonzales v. State, 120 Idaho 759, 763, 819 P.2d 1159, 1163 (Ct.App.1991); Hoover v. State, 114 Idaho 145, 146, 754 P.2d 458, 459 (Ct.App.1988); Ramirez v. State, 113 Idaho 87, 89, 741 P.2d 374, 376 (Ct.App.1987). On review of a dismissal of a post-conviction relief application without an evidentiary hearing, we determine whether a genuine issue of fact exists based on the pleadings, depositions and admissions together with any affidavits on file; moreover, the court liberally construes the facts and reasonable inferences in favor of the non-moving party. Ricca v. State, 124 Idaho 894, 896, 865 P.2d 985, 987 (Ct.App.1993).

B. Jurisdiction

First, Izzard argues that the district court was without jurisdiction to accept his guilty plea to aggravated battery because "there was no information charging [him] with that offense" which had been filed at the time of his plea. Whether a formal amended information must be filed in order to vest a trial court with jurisdiction to accept a defendant's plea of guilty to a lesser charge than that contained in an original information is an issue of first impression in Idaho.

Article I, section 8 of the Idaho Constitution provides that no person "shall be held to answer for any felony or criminal offense of any grade, unless on presentment or indictment of a grand jury or on information of the public prosecutor." The information or indictment is the jurisdictional instrument upon which a defendant stands trial. 41 AM. JUR.2d Indictments and Information § 19 (1995). A trial court lacks jurisdiction over a criminal defendant if no information or indictment is filed by the state. A trial court may also lack jurisdiction over a defendant if an otherwise filed indictment or information contains jurisdictional defects. Hays v. State, 113 Idaho 736, 739, 747 P.2d 758, 761 (Ct.App.1987). A jurisdictional defect exists: (1) when the alleged facts are not made criminal by statute; (2) there is a failure to state facts essential to establish the offense charged; (3) the alleged facts show on their face that the court has no jurisdiction of the charged offense; or (4) the allegations fail to show that the offense charged was committed within the territorial jurisdiction of the court. Id.

An information charging Izzard with battery with intent to commit murder and conspiracy to commit murder was filed by the state on January 30, 1997. There is no indication that the information contained any of the jurisdictional defects listed above. As a result, the initial information filed by the state vested the district court with jurisdiction over Izzard, such that he was properly held to answer for the criminal acts of battery with intent to commit murder and conspiracy to commit murder. Nevertheless, Izzard contends on appeal that the district court was without jurisdiction, in the absence of the filing of an amended information, to accept his plea to a lesser charge than that contained in the original information.

In Burns v. State, 300 So.2d 317 (Fla.Dist. Ct.App.1974), the Court of Appeals of Florida considered a similar situation where a defendant pled guilty to an offense that was not included in the original information. The court noted that the state's attorney general had long-advised that an amended information should be filed before a trial court accepts a plea to a lesser offense. Nevertheless, the court determined that it should "treat the proceedings conducted in open court and duly recorded as constituting a mutually agreeable amendment of the accusatory writ." Id. at 318. The court explained that all parties had agreed and that the offense to which the defendant pled guilty was less severe than that charged in the information. Consequently, the court held that "there being a full record of acquiescence on both sides to the plea of guilty of grand larceny, we treat the information as amended in open court and affirm the judgment entered thereon." Id.; see also State v. Anderson, 537 So.2d 1373, 1376 (Fla.1989)

("The fact that the amended information was subsequently orally amended did not have the effect of divesting the court of jurisdiction.").

In Lowman v. State, 303 So.2d 667 (Fla. Dist.Ct.App.1974), the Court of Appeals of Florida again noted that it would be better practice to require that an amended accusatory pleading be first filed before a defendant pleads guilty to a charge not contained in the original information. However, "the court's failure to follow such practice did not deprive it of jurisdiction in the case." Id. at 668.

The Supreme Court of Iowa applied a similar reasoning in State v. Hochmuth, 585 N.W.2d 234 (Iowa 1998) and held that a defendant may waive objection to the lack of a formal charge by pleading guilty to the uncharged offense so long as the defendant voluntarily, knowingly, and intelligently pleads guilty to a lesser crime not otherwise contained in the original information. See also State v. Meyers, 256 Iowa...