State v. Nellsch
| Decision Date | 31 March 1986 |
| Docket Number | No. 16034,16034 |
| Citation | 716 P.2d 1366,110 Idaho 594 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Lawrence L. NELLSCH, Defendant-Appellant. |
| Court | Idaho Court of Appeals |
Charles B. Lempesis and Anthony M. Sanchez (Kootenai County Public Defender's Office), Post Falls, for defendant-appellant.
Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., A. Rene Fitzpatrick, Deputy Atty. Gen., Boise, for plaintiff-respondent.
Lawrence Nellsch pled guilty and was convicted for first degree kidnapping, two robberies, possession of cocaine, and an infamous crime against nature. Nellsch received the following indeterminate sentences: twenty-five years for the kidnapping; concurrent fifteen-year terms for the robberies, to be served consecutive to the kidnapping sentence; a five-year term for the infamous crime, to be served concurrent with the robbery sentences; and a three-year term for possession of cocaine, to be served consecutive to the robbery sentences. On appeal, Nellsch asserts that the sentences were excessive and represent an abuse of discretion by the district court. We hold that Nellsch received an illegal sentence on the kidnapping conviction. We therefore vacate Nellsch's sentence for that crime and remand for further proceedings.
Neither party has raised the issue of the illegal sentence for kidnapping, on this appeal. However, where we are asked on appeal to review a sentence imposed in a criminal case, and it appears that an illegal sentence has been imposed, we will sua sponte address the problem even though the legality of the sentence has not been made an issue on appeal. State v. Merrifield, 109 Idaho 11, 17, 704 P.2d 343, 349 (Ct.App.1985). If the illegality can be remedied by modification on appeal, we will do so. See, e.g., State v. Evans, 107 Idaho 429, 690 P.2d 364 (Ct.App.1984); State v. Pierce, 107 Idaho 96, 685 P.2d 837 (Ct.App.1984). However, if the illegality cannot be remedied by modification of the sentence on appeal we have no choice but to vacate that sentence and remand the case for further proceedings. State v. Merrifield, supra. With those standards in mind, we will examine why Nellsch's sentence for kidnapping was illegal and why the sentence cannot be modified on appeal.
In State v. Wilson, 107 Idaho 506, 690 P.2d 1338 (1984), our Supreme Court addressed the imposition of a sentence for a specified term of years under the first degree murder statute, I.C. § 18-4004. Because that statute provided that "every person guilty of murder of the first degree shall be punished by death or by imprisonment for life," the Court held that a sentence for a term of years was not allowed. If the death penalty is not imposed, then only a life sentence--which may be either fixed or indeterminate--shall be imposed. 107 Idaho at 509, 690 P.2d at 1341. Likewise, here, the first degree kidnapping statute, I.C. § 18-4504, provides that "[e]very person guilty of kidnapping in the first degree shall suffer death or be punished by imprisonment in the state prison for life...." Thus, Nellsch's sentence of twenty-five years does not meet the mandatory life imprisonment penalty prescribed...
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Nellsch v. State
...district court. On appeal, this Court held that Nellsch received an illegal sentence on the kidnapping conviction. State v. Nellsch, 110 Idaho 594, 716 P.2d 1366 (Ct.App.1986). The statute which prescribes the penalty for kidnapping, I.C. § 18-4504, requires that a person guilty of first de......
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Hanks v. Christensen
... ... Melvin ... Dean Hanks (Petitioner) has filed a Petition for Writ of ... Habeas Corpus challenging his state court determinate life ... sentence. Dkt. 2. Federal habeas corpus relief is available ... to petitioners who are held in custody under a ... authority to order the term either as determinate or ... indeterminate. I.C. § 19-2513A (repealed 1986); ... State v. Nellsch, 110 Idaho 594, 595, 716 P.2d 1366, ... 1367 (Ct. App. 1986) ... Here, the district court recognized its discretionary ... ...
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Hanks v. State
...authority to order the term either as determinate or indeterminate. I.C. § 19-2513A (repealed 1986); State v. Nellsch, 110 Idaho 594, 595, 716 P.2d 1366, 1367 (Ct. App. 1986). Here, the district court recognized its discretionary authority pursuant to I.C. § 19-2513A, but repeatedly indicat......
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King v. State
...we discover the existence of an illegal sentence, we cannot allow such a sentence to stand uncorrected. See, e.g., State v. Nellsch, 110 Idaho 594, 716 P.2d 1366 (Ct.App.1986); State v. Merrifield, 109 Idaho 11, 704 P.2d 343 (Ct.App.1985); State v. Evans, 107 Idaho 429, 690 P.2d 364 (Ct.App......