State v. Pyne
| Decision Date | 05 October 1983 |
| Docket Number | 14052,No. 14051,14051 |
| Citation | 670 P.2d 528,105 Idaho 427 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Robert PYNE, Defendant-Appellant. |
| Court | Idaho Supreme Court |
Robert I. Fallowfield, Ketchum, for defendant-appellant.
Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., Leslie L. Goddard, Deputy Atty. Gen., Boise, for plaintiff-respondent.
On April 7, 1980, the defendant, Robert Pyne, was charged with burglary in the second degree in violation of I.C. Section 18-1401 and Section 18-1402. On September 5, 1980, Pyne was charged with two counts of felony bail jumping and one count of misdemeanor bail jumping. The misdemeanor charge was dropped and on December 19, 1980, Pyne was found guilty by a jury of two counts of felony bail jumping. On the date of sentencing he pleaded guilty to the burglary charge and the district judge sentenced him to the Idaho State Penitentiary The defendant appeals from the convictions of felony bail jumping. In addition, the defendant appeals from the sentence on the second degree burglary conviction in the event that the felony bail jumping convictions are reversed.
The amended, amended information 1 filed by the State set forth that the defendant was set at liberty in Blaine County but it did not allege that the crime of bail jumping was committed in that particular county. This Court has previously stated:
State v. Mowrey, 91 Idaho 693, 695, 429 P.2d 425, 427 (1967). Without allegations that the failures to appear occurred in Blaine County, the Information failed to state facts sufficient to confer jurisdiction upon the district court of Blaine County. Mowrey, supra. Therefore, the judgment of conviction as to the two counts of felony bail jumping is reversed and the information is dismissed for want of jurisdiction.
Having reversed the felony bail jumping convictions, we must proceed to address the issue of the validity of the sentence on the second degree burglary conviction. The defendant argues that but for the two bail jumping convictions, a five-year determinate sentence for the second degree burglary conviction was an abuse of discretion by the trial court. An appellant has the burden of showing a clear abuse of discretion if the sentence is within the statutory limits. State v. Olsen, 103 Idaho 278, 647 P.2d 734 (1982); State v. Lopez, 102 Idaho 692, 638 P.2d 889 (1981); State v. Birrueta, 101 Idaho 915, 623 P.2d 1292 (1981). I.C. Section 18-1403 states that the maximum sentence which may be imposed for second degree burglary is a term of five years.
The transcript of the sentencing hearing reveals that the trial judge considered the following in fixing the sentence on the second degree burglary conviction: (1) the presentence report; (2) the defendant's character and criminal history; (3) the facts and conditions surrounding the offense; (4) the appropriateness of probation; (5) society's interest in the case; and, (6) arguments by counsel. We conclude that the defendant has failed to show that there was a clear abuse of discretion by the trial court. We therefore affirm the sentence on the second degree burglary conviction.
Reversed in part, affirmed in part.
In my view, the Court's opinion does not adequately meet or discuss all the issues which have been capably addressed by counsel for the parties. I will address the one issue which is of particular importance, leaving to the parties whether they will petition the court for more enlightenment on issues not discussed.
The case presents this Court with its first opportunity to consider the provisions of I.C. § 18-7401 which purports to create a criminal offense for a defendant's failure to appear in a criminal action being processed against him. The statute is of recent origin, and it is surmised that most members of the bench and bar will be surprised to learn of its existence. It reads as follows:
The Court's opinion undertakes no study of the statute, notwithstanding that its terminology and meaning constitute the primary issue on the appeal. Moreover, the Court's view of the statute will be of extreme importance to the members of the bench and bar, including prosecuting attorneys who are by the statute given a rather devastating weapon. The defendant points out that there is nothing in the record which demonstrates that upon his admission to bail an order was entered to the effect that, if he did provide bail and was released, it was on condition that under penalty of law he would for failure to appear at some designated time and place be guilty of a felony. The State's response that there is not in the appeal record a transcript of the preliminary hearing is meaningless. A preliminary hearing is held for a single purpose, and that purpose is not to determine the propriety of admission to bail, or how much the bail will be. What it comes down to here is that the statute appears to have not been complied with, and, even if this defendant knew of the statute, which is much to be doubted, 1 neither he nor any defendant can be charged under it without having specifically agreed to the condition on which they are released, as in the case of probation agreements, or by an order of the court which in unmistakable terms clearly informs the defendant that there is the condition of criminal prosecution attached to the release, and that if the condition is violated, then the violation has been criminalized by the statute. The statute is vicious in and of itself. It is even more so when applied, as appears to be the case here, to unsuspecting defendants who are not forewarned, and in that respect it is only necessary to cite this Court's opinion which struck down the statute criminalizing prostitution. See State v. Lopez, 98 Idaho 581, 570 P.2d 259 (1977). This the Court did because men of ordinary reason and intelligence were not forewarned for the exact type of conduct which was against the law--in other words, a statute facially unconstitutional. The bail jumping statute is in the same category, and in this case is for certain unconstitutional as applied, and has all of the requisite indicia and attributes of being facially unconstitutional as well. An unconstitutional statute does not state a public offense. That is the important issue which the Court avoids in favor of the highly technical, but nevertheless applicable grounds that the prosecutor's information did not adequately allege venue.
The defendant also points to the fact that the district court, for the two offenses of bail jumping and the other admitted offense of burglary, imposed three concurrent five-year sentences. He urges that, but for the two bail jumping offenses the district court would not likely have imposed a five- year sentence for the pilfering type of burglary to which the defendant entered a guilty plea, the defendant mentioning that the purloined money had been paid back to the victim. There is merit to the defendant's contention, and it bears mention that he does not ask us to reduce the burglary sentence, but only that we remand so that the district judge can reimpose sentence on a slate cleaned of the bail jumping convictions. This is a reasonable request, but criminal rule 35 will give the defendant the same opportunity of redress now that the bail jumping convictions have been reversed. I mention now only that if this Court is going to occasionally retain sentence review cases, it should on those occasions engage in the meaningful type of review which our court of appeals undertakes in every instance. This would include requiring of the district judges that they furnish the defendants, in the first instance, and reviewing court in the second instance some statement of reasons and grounds which produced the particular sentence.
Unfortunately, in affirming the maximum five-year determinate sentence handed down by the trial judge, it appears that the Court may once again have returned to its ...
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Hays v. State
...the allegations fail to show that the offense charged was committed within the territorial jurisdiction of the court. State v. Pyne, 105 Idaho 427, 670 P.2d 528 (1983); State v. Mowrey, 91 Idaho 693, 429 P.2d 425 (1967). Such defects are not waived by the entry of a guilty plea. On the othe......
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...of Idaho confers subject matter jurisdiction upon the court. Slater, 71 Idaho at 338, 231 P.2d at 425. Accord, State v. Pyne, 105 Idaho 427, 428, 670 P.2d 528, 529 (1983); State v. Mowrey, 91 Idaho 693, 695, 429 P.2d 425, 427 (1967). Subject matter jurisdiction to try a defendant and impose......
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...the failure of an indictment to charge a crime is a fundamental defect which can be raised at any time. Id.; see also State v. Pyne, 105 Idaho 427, 670 P.2d 528 (1983); State v. Mowrey, 91 Idaho 693, 429 P.2d 425 (1967); State v. Cole, 31 Idaho 603, 174 P. 131 For all of the reasons stated ......