State v. Smith, 18121
| Decision Date | 03 May 1990 |
| Docket Number | No. 18121,18121 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Floyd A. SMITH, Defendant-Appellant. |
| Court | Idaho Court of Appeals |
Rudolf D. Barchas, Boise, for appellant.
Jim Jones, Atty. Gen., by James E. Leuenberger, Deputy Atty. Gen., Boise, for respondent.
Floyd Smith pled guilty to two counts of lewd conduct with a minor under I.C. § 18-1508. He was sentenced to concurrent fifteen-year terms, with two-year minimum periods of confinement. Smith's motion to reconsider his sentences was denied. I.C.R. 35. On appeal, Smith contends that the district judge abused his discretion in imposing the sentences and in refusing to reduce them.
We view these contentions as two aspects of the same sentencing issue. A lower court's denial of a Rule 35 motion for reduction of sentence will not be disturbed in the absence of an abuse of discretion based upon a review of the entire record and application of the same criteria used to determine the reasonableness of the original sentence. State v. Allbee, 115 Idaho 845, 771 P.2d 66 (Ct.App.1989). Those criteria focus on the nature of the offense and character of the offender.
Smith's convictions arose from multiple incidents involving his step-daughter, which occurred over a period of years, and separate contacts with two students in the Boise City Gymnastics program in which he was an instructor. The presentence report indicated he represents a high risk of repeat offenses. At sentencing, the district judge found that the primary goals in imposing the sentences were the protection of society and deterrence, rather than Smith's rehabilitation.
Smith bases his appeal on the claim that I.C. § 20-223(b) 1 will require him to serve the full fifteen years of the concurrent sentences and not just the two-year minimum terms of confinement, thereby committing him to an unduly harsh sentence under State v. Toohill, 103 Idaho 565, 650 P.2d 707 (Ct.App.1982), and State v. Sanchez, 115 Idaho 776, 769 P.2d 1148 (Ct.App.1989). He argues that as a first time offender and a pedophile with strong treatment potential, he will receive no treatment in the penitentiary system. Smith contends his probable term of confinement likely will extend well beyond his minimum term because I.C. § 20-223 requires the Commission on Pardons and Parole to consider a psychiatric examination of offenders of this type and only allows parole on a finding that the Commission reasonably believes the prisoner no longer poses a threat to the safety of society. Therefore, he invites this Court to look to the entire unified sentences of fifteen years in determining his probable terms of confinement and use that full term as the benchmark for reviewing the reasonableness of his sentences.
While Smith has not previously been convicted of this type of offense, his multiple contacts with juveniles over a period of years...
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