State v. Peterson
| Decision Date | 18 March 1992 |
| Docket Number | No. 19146,19146 |
| Citation | 828 P.2d 338,121 Idaho 775 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Mitchell PETERSON, Defendant-Appellant. |
| Court | Idaho Court of Appeals |
Alan E. Trimming, Ada County Public Defender, Tim Hansen (argued), Deputy Atty. Gen., Boise, for defendant-appellant.
Larry J. EchoHawk, Atty. Gen., Myrna A.I. Stahman (argued), Deputy Atty. Gen., Boise, for plaintiff-respondent.
This is an appeal from the district court's denial of Mitchell Peterson's Motion for Correction of Judgment. In his motion, Peterson argued that the district court erred by refusing to give him credit for time served prior to imposition of his sentence, as well as for time he served after sentencing as a condition of his probation. The district court denied Peterson's motion, and Peterson appeals. We reverse and remand.
-1402, -1404, and grand theft, a felony, I.C. §§ 18-2403(1), -2407(1). On January 30, 1984, the district court sentenced Peterson to a seven-year indeterminate period of confinement on each count, with the sentences to run concurrently. The court then suspended execution of the sentences and placed Peterson on probation for seven years. Peterson had been incarcerated for approximately nine months before he was sentenced and released on probation.
Nearly five years later, Peterson was again before the district court on charges that he had violated the terms of his probation. After Peterson admitted violating his probation, the district court, on February 27, 1989, decided to reinstate Peterson's probation on condition that he serve one year in the Ada County Jail. The district court stated it would credit the 46 days Peterson had been in confinement during the pendency of the probation violation proceedings toward Peterson's one-year jail term. Peterson accepted the terms of probation and began serving his one-year jail term.
In June, 1989, Peterson moved the district court for an order for release time from jail in order to conduct a work search. On June 8, 1989, the district court ordered that Peterson be allowed to leave the jail to conduct a work search between 8:30 a.m. and 5 p.m. for five days, beginning on June 12 and ending on June 19, 1989. After Peterson was released for work search on the 19th, he did not return to the jail.
On July 11, 1989, Peterson was arrested for violating the terms of his probation, having failed to serve the one-year jail term which was a condition of his probation. On October 2, 1989, the district court conducted a probation violation hearing, after which it determined that Peterson had violated the terms of his probation. On October 16, 1989, the district court revoked Peterson's probation and ordered imposition of his original sentence; however, the court reduced Peterson's original sentence from a seven to a five-year indeterminate period. The court also ordered that Peterson be credited with the 49 days of confinement he served during the pendency of the second probation violation proceeding.
Subsequently, Peterson filed a Motion for Reconsideration of Sentence, asserting: (1) that he should have been credited with 97 rather than 49 days; and (2) that his sentence was excessive. On April 16, 1990, the district court determined that Peterson should have been credited with 97 days, rather than the 49 days previously ordered. However, the court refused to otherwise reduce Peterson's sentence.
On November 29, 1990, Peterson filed a Motion for Correction of Judgment, requesting that the court credit him with an alleged total of 541 days served prior to reinstatement of his sentence. In his motion, Peterson argued that the court should give him credit for any and all time he had been in custody between the time he was arrested on the original charges and the decision to revoke his probation and execute his sentence. On December 31, 1990, the district court denied Peterson's Motion for Correction of Judgment, stating that "[t]he defendant has received all the credit for time served which he is entitled to receive." Peterson has appealed this denial. For the following reasons, we reverse and remand.
We note initially the standard of review applicable to this appeal. Peterson has appealed the district court's denial of his motion to correct an allegedly illegal sentence. Whether a sentence is illegal is a question of law which we review freely. State v. Hale, 116 Idaho 763, 765, 779 P.2d 438, 440 (Ct.App.1989).
On appeal, Peterson asserts that the district court erred by failing to credit him with: (1) the nine months (approximately 285 days) that he was incarcerated before he was sentenced on January 30, 1984; and (2) the approximately 158 days he served on his one-year jail term, which jail term was a condition of his probation.
1. Credit for the Approximately Nine Months of Presentence Incarceration.
Idaho Code § 18-309 provides as follows:
In computing the term of imprisonment, the person against whom the judgment was entered, shall receive credit for any period of incarceration prior to entry of judgment, if such incarceration was for the offense or an included offense for which the judgment was entered. The remainder of the term commences upon the pronouncement of sentence and if thereafter, during such term, the defendant by any legal means is temporarily released from such imprisonment and subsequently returned thereto, the time during which he was at large must not be computed as part of such term.
This section clearly requires that Peterson receive credit for presentence incarceration. Sentence was imposed on Peterson on January 30, 1984, when he was sentenced to concurrent seven-year indeterminate terms. Placing Peterson on probation merely suspended the execution of the sentence. State v. Ditmars, 98 Idaho 472, 474, 567 P.2d 17, 19 (1977), cert. denied, 434 U.S. 1088, 98 S.Ct. 1284, 55 L.Ed.2d 793 (1978); State v. Banks, 121 Idaho 608, 826 P.2d 1320 (1992). Peterson was incarcerated for approximately nine months prior to his sentencing. Under I.C. § 18-309, Peterson is entitled to credit for that time served.
The state has argued that Peterson already received credit for the approximately nine months he served in presentence incarceration, because when the judge revoked his probation and reinstated The state has also argued that the district judge lacked jurisdiction, at the time of revoking Peterson's probation and reinstating his sentence, to reduce his original sentence from seven to five years. I.C.R. 35 provides that ...
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