State v. Morris

• Decision Date: 30 January 1998
• Docket Number: No. 23736,23736
• Citation: 131 Idaho 263,954 P.2d 681
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Carl T. MORRIS, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 681

954 P.2d 681

131 Idaho 263

STATE of Idaho, Plaintiff-Respondent, v. Carl T. MORRIS, Defendant-Appellant.

No. 23736.

Court of Appeals of Idaho.

Jan. 30, 1998.

Rehearing Denied April 6, 1998.

Wiebe & Fouser, Caldwell, for defendant-appellant.

Alan G. Lance, Attorney General, Kevin J. Wladyka, Deputy Attorney General, Boise, for plaintiff-respondent.

PERRY, Judge.

Carl T. Morris appeals from the district court's order denying his I.C.R. 35 motion for correction of an illegal sentence. For the reasons set forth below, we reverse and modify Morris's sentence.

The background of this case is not in dispute. Morris committed certain crimes in November 1990 for which he was charged with first degree burglary, I.C. §§ 18-1401, -1402, and malicious injury to property, I.C. § 18-7001. Morris pled guilty to first degree burglary in April 1992, and the state dismissed the malicious injury to property charge. At the time of the commission of the crimes, first degree burglary was punishable by up to fifteen years in prison. Effective July 1, 1992, the legislature repealed I.C. § 18-1402, which drew a distinction between first and second degree burglary, and also amended I.C. § 18-1403, reducing the maximum sentence from fifteen years to ten years. On July 1, 1992, Morris was sentenced to a unified term of fifteen years, with a minimum term of incarceration of five years. The district court entered its written judgment of conviction and sentence on July 2, 1992. Morris appealed, asserting that the district court abused its discretion by imposing an unduly harsh sentence. This Court affirmed. State v. Morris, 123 Idaho 989, 855 P.2d 74 (Ct.App.1993). Morris subsequently filed a Rule 35 motion for correction of an illegal sentence, asserting that because the maximum sentence for burglary had been reduced from fifteen years to ten years effective July 1, 1992, the district court entered an illegal sentence by imposing a greater sentence than what the statute allowed. The district court denied Morris's motion. This appeal ensued.

The sole issue we address in this case is whether Morris was entitled to benefit from the Idaho Legislature's amendment of I.C. § 18-1403, effective July 1, 1992, which reduced the maximum sentence for burglary from fifteen years to ten years. If the amended statute applied, as Morris contends, his sentence of fifteen years would be illegal.

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).

The state argues that Idaho law supports the district court's denial of Morris's Rule 35 motion under State v. Eikelberger, 71 Idaho 282, 230 P.2d 696 (1951). In Eikelberger, the defendant was convicted and sentenced for a felony. However, the crime for which he was convicted was only a misdemeanor at the time of its commission. The Idaho Supreme Court modified the terms of the district court's judgment and order to reflect a misdemeanor. In its opinion, the Supreme Court stated that one "who is convicted of a crime committed prior to the effective date of an act cannot be sentenced except under the law in force when the crime was committed." Eikelberger, 71 Idaho at 289, 230 P.2d at 701, citing In re Chase, 18 Idaho 561, 110 P. 1036 (1910).

We disagree with the state that Eikelberger is controlling. The Supreme Court's holding in Eikelberger addressed the issue of whether a defendant who had been convicted of a crime, a felony at the time of judgment but only a misdemeanor at the time of its commission, should have the felony conviction reduced to a misdemeanor. The Eikelberger holding, which prevented the imposition of a greater penalty than that allowed at the time of the commission of the offense, is consistent with the prohibition against ex post facto laws under Article I, Section 10 of the United States Constitution and Article I, Section 16 of the Idaho Constitution.

In the case at bar, this Court is presented with the separate issue of whether a defendant is entitled to benefit from an ameliorative sentencing amendment that took effect between the time the crime was committed and the time the judgment of conviction and sentence was entered. The Eikelberger holding is inapposite to the issue before this Court. Thus, in consideration of the foregoing, we conclude that the Supreme Court's holding in Eikelberger is not controlling in the case at bar. ¹ We recognize, however, that the Eikelberger holding would have been applicable had Morris been convicted of second degree burglary, which had a maximum five-year term of incarceration under the prior version of I.C. § 18-1403. The district court could not have sentenced Morris to a term of incarceration greater than five years under amended I.C. § 18-1403 which authorizes a ten-year period of incarceration for a burglary conviction.

In denying Morris's Rule 35 motion, the district court noted State v. Musquiz, 96 Idaho 105, 524 P.2d 1077 (1974); State v. Butler, 95 Idaho 899, 523 P.2d 31 (1974); and State v. Pontier, 95 Idaho 707, 518 P.2d 969 (1974). These cases are not helpful, however, because in each of them the legislature had specified in the revised statute whether the new punishment would apply to offenses committed prior to the effective date of the amendment. In the case at bar, the district court correctly noted that the statute at issue, I.C. § 18-1403, did not expressly provide which sentencing statute should apply to crimes committed prior to July 1, 1992. The district court then denied Morris's motion, concluding that " absent legislative intent to the contrary, a sentence is proper if it complies with the statute in effect at the time the defendant committed the offense."

Although the issue raised by Morris is of first impression in this state, it has been addressed by the California Supreme Court. In re Estrada, 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 (1965). In Estrada, the California Supreme Court reviewed a statute which reduced the time the defendant had to spend in prison before becoming eligible for parole. The statutory amendment became effective after the defendant committed the underlying crime, but before the defendant was convicted and sentenced. The California Supreme Court held that the defendant was entitled to the ameliorative terms of the amended statute. In its holding, the court first focused on the legislature's intent.

The problem, of course, is one of trying to ascertain the legislative intent--did the Legislature intend the old or new statute to apply? Had the Legislature expressly stated which statute should apply, its determination, either way, would have been legal and constitutional. It has not done so. We must, therefore, attempt to determine the legislative intent from other factors.

... When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final. This intent seems obvious, because to hold otherwise would be to conclude that the Legislature was motivated by a desire for vengeance, a conclusion not permitted in view of modern theories of penology.

Estrada, 48 Cal.Rptr. at 175, 408 P.2d at 951. The court next reviewed two statutory provisions which arguably could have preserved the old statute: section 9608, a general saving statute, ² and Section 3 of the California Penal Code, which stated that no part of the penal code "is retroactive, unless expressly so declared." The court concluded that neither statute applied, stating:

A reading of [section 9608] demonstrates that the Legislature, while it positively expressed its intent that an offender of a law that has been repealed or amended should be punished, did not directly or indirectly indicate whether he should be punished under the old law or the new one. As has already been pointed out, where the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed. Neither a saving clause such as section 9608 ... nor a construction statute such as section 3 ... changes that rule.

Estrada, 48 Cal.Rptr. at 177, 408 P.2d at 953.

The Montana Supreme Court reached the same result in State v. Wilson, 279 Mont. 34, 926 P.2d 712, 716 (1996). In Wilson, the Montana Supreme Court addressed whether the trial court had the authority to designate the defendant as a dangerous offender pursuant to a statute which was in effect at the time the defendant committed his underlying offenses, but had been repealed before his conviction and sentencing. The Montana Supreme Court recognized that Montana had a statute saving prosecutions and a statute prohibiting the retroactive application of laws. ³ However, the court found Estrada persuasive and held:

[W]hen a sentencing statute:

(1) is repealed between the date a defendant commits the underlying offenses and is sentenced; and

(2) where the effect of the repeal lessens or ameliorates the defendant's punishment; and

(3) where the repealer contains no savings clause;

the defendant is entitled to be sentenced according to the sentencing ...