State v. Jakoski, No. 29494.

• Court: Idaho Supreme Court
• Writing for the Court: EISMANN, Justice.
• Citation: 79 P.3d 711,139 Idaho 352
• Docket Number: No. 29494.
• Decision Date: 29 October 2003
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Benjamin JAKOSKI, Defendant-Appellant.

79 P.3d 711
139 Idaho 352

STATE of Idaho, Plaintiff-Respondent,
v.
Benjamin JAKOSKI, Defendant-Appellant

No. 29494.

Supreme Court of Idaho, Boise, September 2003 Term.

October 29, 2003.

79 P.3d 712

Molly J. Huskey, State Appellate Public Defender, Boise, for appellant. Sara B. Thomas argued

Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.

EISMANN, Justice.

This is an appeal from an order of the district court denying the defendant's motion to withdraw his guilty plea. We hold that the district court did not have jurisdiction to consider the motion made almost six years after the judgment was entered.

I. FACTS AND PROCEDURAL HISTORY

On March 31, 1994, Benjamin Jakoski was charged by information with the crime of sexual abuse of a minor. After plea negotiations, Jakoski, his counsel, and the prosecuting attorney appeared in court on October 25, 1994, in order for Jakoski to enter an Alford¹ plea to a lesser charge of assault with intent to commit a serious felony.² At the time that Jakoski pled guilty, the information had not yet been amended to conform to the plea agreement. Therefore, the district court could neither read the amended information to Jakoski nor provide him with a copy of it.³ When taking Jakoski's guilty plea, the district court simply informed Jakoski that the amended information would charge "assault with intent to commit a serious felony." There was no discussion on the record regarding what serious felony the amended information would allege that Jakoski intended to commit. Jakoski pled guilty to the charge. Later that day, the state filed the amended information and served a copy upon Jakoski's attorney.

On December 12, 1994, the district court sentenced Jakoski to five years in the custody of the Idaho Board of Correction, with the first two years fixed and the remaining three years indeterminate. The district court suspended that sentence and placed Jakoski on probation for five years.

On January 26, 1995, the state filed a petition to revoke Jakoski's probation. After Jakoski admitted violating his probation, the district court revoked his probation and ordered that the suspended sentence be executed. The district court also retained jurisdiction for 180 days pursuant to Idaho Code § 19-2601(4). After the expiration of the period of retained jurisdiction, the district court again suspended Jakoski's sentence and placed him on probation for a term of eight years.

On June 7, 1996, the state again filed a petition to revoke Jakoski's probation, and Jakoski admitted the violation. As a result of this violation, the district court extended the term of Jakoski's probation to ten years and ordered him to serve one year in jail.

On September 18, 1997, the state filed a third petition to revoke Jakoski's probation. After Jakoski admitted the probation violation, the district court on October 24, 1997, revoked Jakoski's probation and ordered execution of the previously suspended sentence.

Jakoski appealed contending that the district court erred in failing to give him credit for the one year he served in jail as a condition of probation. That appeal was heard by the Idaho Court of Appeals, which affirmed the district court. State v. Jakoski, 132 Idaho 67, 966 P.2d 663 (Ct.App.1998).

79 P.3d 713

Jakoski later filed a petition for post-conviction relief. He contended that his trial counsel was ineffective for failing to tell Jakoski that he would not receive credit for the one year in jail served as a condition of probation. He also contended that his appellate counsel was ineffective for failing to argue that Jakoski's admission of the second and third probation violations were involuntary because he had not been advised that he would not receive credit for time served in jail as a condition of probation and for failing to promptly advise Jakoski of the prior decision of the Court of Appeals so that he could file a petition for review with this Court. The district court dismissed Jakoski's petition for post-conviction relief, and that dismissal was upheld on appeal by the Idaho Court of Appeals. Jakoski v. State, 136 Idaho 280, 32 P.3d 672 (2001)

On December 19, 2000, Jakoski filed a motion pursuant to Idaho Criminal Rule 33(c) seeking to withdraw his plea of guilty on the grounds that it was not made knowingly, intelligently, and voluntarily and that his attorney was ineffective. Jakoski contended that his guilty plea was not made knowingly, intelligently, and voluntarily because he had never been informed that the amended information alleged he committed the assault "with the intent to commit a lewd and lascivious conduct with a minor child with the intent to gratify the sexual desire of the Defendant and/or the child." He contended that his counsel was ineffective because he allegedly informed Jakoski that the amended charge was not a sex crime and pressured him into pleading guilty.

The district court denied Jakoski's motion to...