State v. Torres

• Decision Date: 31 December 1984
• Docket Number: No. 14574,14574
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Robert TORRES, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 1097

693 P.2d 1097

107 Idaho 895

STATE of Idaho, Plaintiff-Respondent, v. Robert TORRES, Defendant-Appellant.

No. 14574.

Court of Appeals of Idaho.

Dec. 31, 1984.

Stanley G. Cole and Raymundo Guajardo Pena (argued), Rupert, for defendant-appellant.

Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., Myrna A.I. Stahman, Deputy Atty. Gen., Boise, for plaintiff-respondent.

BURNETT, Judge.

This is an appeal from an order denying a motion to reduce a sentence under I.C.R. 35. The motion was submitted by Robert Torres after he received an indeterminate sentence of twenty-four years for rape. On appeal he has presented two sets of issues: (1) whether the sentence was excessive and was entered upon an inadequate presentence report; (2) whether the judge who denied the Rule 35 motion abused his discretion by refusing to modify the sentence and by refusing to consider a social worker's report offered in support of the motion. For reasons explained below, we reject Torres' challenge to the sentence and presentence report, but we vacate the order denying the Rule 35 motion.

The judgment of conviction for rape, which included the sentencing order, was a final judgment for the purpose of appeal. When the judgment was entered, the forty-two day appeal period allowed by I.A.R. 14 started to run. No motions affecting the judgment were filed during this period. The time for appeal expired before Torres sought reduction of the sentence under Rule 35. Consequently, we lack jurisdiction to entertain, in this appeal, Torres' challenge to the sentence as originally imposed. State v. Hirshbrunner, 105 Idaho 168, 667 P.2d 271 (Ct.App.1983). A fortiori, we have no occasion to examine Torres' attack upon the adequacy of the presentence report.

We turn to the second set of issues, relating to disposition of the Rule 35 motion. The State has raised a threshold question as to whether the district court had jurisdiction to act on the motion. Rule 35 provides in part that "[t]he court may reduce a sentence within 120 days after the sentence is imposed...." During the 120-day period in this case, Torres sent the district judge a letter specifically requesting a "Rule 35 Sentence Reduction." New counsel was appointed for Torres, and the attorney later filed a formal, "amended" motion after 120 days had elapsed. The State now argues that the initial letter was not cognizable as a Rule 35 motion and, therefore, that the subsequent "amended" motion was time-barred. We disagree.

An informal letter from a defendant, seeking reconsideration of his sentence, implicitly has been held to meet a similar 120-day deadline prescribed by Rule 35 of the Federal Rules of Criminal Procedure. United States v. Cotton, 586 F.Supp. 199 (E.D.Wis.1983). A federal appellate court has upheld without comment the treatment of an informal letter request for reconsideration of a sentence as a motion under federal Rule 35. See Seiller v. United States, 544 F.2d 554 (2d Cir.1975). We adopt this approach and hold that the district judge did not err by treating Torres' letter as a motion for reduction of sentence under the Idaho rule.

The State further contends that even if Torres' motion was timely, the district court lost jurisdiction to rule on it after the 120-day period had expired. Again, we disagree. In the federal system, the 120-day time limit for filing Rule 35 motions is jurisdictional and may not be extended. United States v. Addonizio, 442 U.S. 178, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979). However, several federal courts have held that rulings on timely filed motions are not limited to the same 120-day period. The federal district courts are allowed to act on timely motions within a reasonable period after they are filed, even if that period extends beyond 120 days from judgment. See United States v. Johnson, 634 F.2d 94 (3rd Cir.1980); United States v. Stollings, 516 F.2d 1287 (4th Cir.1975); United States v. Mendoza, 565 F.2d 1285 (5th Cir.1978), modified 581 F.2d 89 (1978); United States v. DeMier, 671 F.2d 1200 (8th Cir.1982); United States v. United States District Court, 509 F.2d 1352 (9th Cir.1975), cert. denied sub nom. Rosselli v. United States, 421 U.S. 962, 95 S.Ct. 1949, 44 L.Ed.2d 448 (1975). Recently, the Ninth Circuit summarized the federal interpretation of Rule 35: "This court and other appellate courts have mitigated the arbitrary operation of the Rule by treating the time limit with some flexibility, allowing district courts to retain jurisdiction over timely-filed motions for a 'reasonable time' beyond the deadline." United States v. Smith, 650 F.2d 206, 209 (9th Cir.1981) (citations and footnote omitted).

We are persuaded that this approach is better reasoned than the jurisdictional cutoff urged by the State. Therefore, we hold that a district court does not lose jurisdiction to act upon a timely motion under Rule 35 merely because the 120-day period expires before the judge reasonably can consider and act upon the motion. In this case the delay was caused in part by the retirement of the original sentencing judge. We will not visit the consequences of such delay upon Torres.

We now return to Torres' contention that his Rule 35 motion was wrongly decided. The principal point of contention is whether the judge who heard the motion unduly restricted the evidence Torres was allowed to present. Torres offered an evaluation made of him by a social worker for the Board of Correction. The report, while not wholly favorable to Torres, contained some observations supportive of his request for a reduced sentence. The prosecutor objected to the report as hearsay. The judge excluded it not only for that reason but also because the judge felt he was constrained to consider only the information available to the prior judge when the sentence was imposed. In ruling on the Rule 35 motion, the judge deemed himself "definitely restricted to the cold record."

We believe the judge unduly narrowed his own discretion. On the hearsay question, it is well...