State v. Williams

• Decision Date: 20 July 1994
• Docket Number: No. 20571,20571
• Citation: 878 P.2d 213,126 Idaho 39
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Terry Lynn WILLIAMS, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 213

878 P.2d 213

126 Idaho 39

STATE of Idaho, Plaintiff-Respondent, v. Terry Lynn WILLIAMS, Defendant-Appellant.

No. 20571.

Court of Appeals of Idaho.

July 20, 1994.

[126 Idaho 41] G. LaMarr Kofoed, Fruitland, for appellant.

Larry EchoHawk, Atty. Gen., Myrna A.I. Stahman, Deputy Atty. Gen., Boise, for respondent.

LANSING, Judge.

We are called upon to determine whether I.C. § 19-2601(4) authorizes a court to retain jurisdiction over a criminal defendant for an evaluation period following revocation of the offender's probation, or whether that statute allows a court to retain jurisdiction only at the time the defendant is initially sentenced. We hold that a court is authorized to retain jurisdiction upon revocation of probation and commitment of the defendant to the custody of the Board of Correction (the Board), provided the court has not previously retained jurisdiction while the defendant was in the custody of the Board in the same case. We also hold that the district court did not err in revoking the defendant's probation, relinquishing jurisdiction following the period of retained jurisdiction and denying the defendant's motion for a reduction of the sentence.

In April 1991, Terry Lynn Williams pleaded guilty to one count of forgery, I.C. § 18-3601, and was sentenced to a unified term of five years with a minimum of two year's confinement. The district court suspended the sentence and placed Williams on probation. About eighteen months later, the court revoked probation due to Williams' violation of probation terms. The district court remanded Williams to the custody of the Board to serve the sentence originally imposed, but also retained jurisdiction over Williams for 180 days. At the close of the retained jurisdiction period, the court relinquished jurisdiction. Shortly thereafter, Williams filed a pro se motion for reduction of sentence under I.C.R. 35, which the district court denied.

Williams now appeals from her original sentence, the order revoking probation, the order by which the district court relinquished jurisdiction following a period of retained jurisdiction, and the order denying Williams' motion for reduction of sentence. For the reasons stated below, we affirm.

I WILLIAMS' APPEAL FROM THE ORIGINAL SENTENCE IS UNTIMELY

Williams first asserts the district court abused its discretion by imposing an excessive sentence. This element of her appeal is untimely. By terms of I.A.R. 14, a notice of appeal must be filed within forty -

two days from entry of the judgment or order from which the appeal is taken. Williams did not appeal within forty-two days from entry of the judgment of conviction and sentence. This Court has no jurisdiction to entertain an untimely appeal, and therefore, we will not consider Williams' contention that the court abused its discretion in the initial sentencing. See State v. Paramore, 119 Idaho 235, 236, 804 P.2d 1366, 1367 (Ct.App.1991); State v. Hickman, 119 Idaho 7, 8, 802 P.2d 1219, 1220 (Ct.App.1990); State v. Dryden, 105 Idaho 848, 852, 673 P.2d 809, 813 (Ct.App.1983).

II. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN REVOKING WILLIAMS' PROBATION

Williams next contends that the district court erred in revoking her probation.

Preliminarily, we address the State's argument that Williams' appeal from the October 30, 1992, order revoking probation is untimely because the notice of appeal was not filed within forty-two days from entry of the probation revocation order. Idaho Appellate Rule 14 provides that an appeal must be filed within forty-two days from the date of the judgment or order. However, that rule also specifies that the period for an appeal in a criminal case is enlarged by the length of time the district court retains jurisdiction pursuant to I.C. § 19-2601(4). Here, the court retained jurisdiction when it revoked probation. The appeal was initiated within forty-two days from the subsequent order relinquishing jurisdiction. As discussed below, the district court acted within its statutory authority in retaining and then relinquishing jurisdiction. Accordingly, the State's assertion that this appeal is untimely with respect to the order revoking probation is without merit.

The decision to revoke a defendant's probation on a suspended sentence is within the discretion of the district court. I.C. § 20-222. State v. Corder, 115 Idaho 1137, 1138, 772 P.2d 1231, 1232 (Ct.App.1989); State v. Coffin, 122 Idaho 392, 393, 834 P.2d 909, 910 (Ct.App.1992). On appeal, we review this decision for an abuse of discretion. State v. Hass, 114 Idaho 554, 558, 758 P.2d 713, 717 (Ct.App.1988). While Williams does not controvert the district court's finding that she violated terms of her probation, she does contend the district court's decision to revoke her probation was an abuse of discretion.

Less than eight months after her conviction Williams was found to have violated probation terms by failing to make restitution payments, attend G.E.D. classes or obtain an alcohol and drug evaluation and by leaving the state without permission from her probation officer. However, the court chose not to revoke probation at that time but to continue the probation with modified terms. The court emphasized that if Williams were to again fail to comply with probation, the only alternative would be incarceration. Five months later, Williams was charged with, and admitted to, probation violations. She again had failed to enroll in and complete a substance abuse treatment program, make meaningful efforts to obtain her G.E.D. or enroll in a parenting, family, and marital counseling program. ¹

Although Williams' probation violations did not include any new criminal activity, the record indicates that her attitude toward her probationary terms was nonchalant at best. She persistently either dropped out of required programs once started or failed to enroll altogether. The purpose of probation is reformation and rehabilitation of the offender. State v. Moore, 93 Idaho 14, 454 P.2d 51 (1969). Probation may be revoked if the judge reasonably concludes, based upon the defendant's behavior, that probation is not achieving its rehabilitative purpose. State v. Mummert, 98 Idaho 452, 455, 566 P.2d 1110, 1113 (1977); State v. Adams, 115 Idaho 1053, 1055, 772 P.2d 260, 262 (Ct.App.1989). Williams' conduct during probation evidenced a disregard for authority and a refusal or inability to benefit from the rehabilitative opportunity presented. Therefore, applying the three-part test for review

[126 Idaho 43] of discretionary actions set forth in State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989), we conclude that the district court's decision to revoke Williams' probation was not an abuse of discretion.

III. THE COURT HAD AUTHORITY TO RETAIN JURISDICTION

Before addressing Williams' contention that the court erred in relinquishing jurisdiction, we will consider the State's threshold argument that the district court lacked authority to retain jurisdiction over Williams in the first instance. The State avers that the district court had no authority to retain jurisdiction when the court placed Williams in the custody of the Board upon revocation of her probation.

A district court's authority to retain jurisdiction over a convicted defendant who has been sentenced to the custody of the Board derives from I.C. § 19-2601(4). At the time of the orders challenged here, this statute provided that a court could retain jurisdiction over the defendant during the first 120 days (which could be extended by 60 days) of a sentence to the custody of the Board, and at any time during that period the court could suspend the further execution of the judgment and place the defendant on probation. ² The State contends that this 180-day period during which the court could retain jurisdiction ran from the date of initial sentencing in May 1991, and that the authority to retain jurisdiction therefore did not exist in October 1992, when the district court revoked probation and purported to retain jurisdiction.

Analysis of the State's argument is aided by a review of the extent of a court's jurisdiction after sentencing, absent the provisions of Section 19-2601(4). If a court sentences a convicted defendant to a prison term and that sentence is executed by transfer of the defendant to the physical custody of the Board, the court's jurisdiction over the defendant terminates. At that point, the court possesses no residual power to alter the sentence in the course of the criminal action except as authorized by I.C.R. 35. ³ Absent an appropriate Rule 35 proceeding, any effort by the court to alter a sentence after the defendant has been placed in the custody of the Board is an impermissible invasion of the authority of the Commission of Pardons and Parole. State v. Chapman, 121 Idaho 351, 354-56, 825 P.2d 74, 77-79 (1992).

This loss of judicial jurisdiction does not occur, however, until the defendant has been placed in the custody of the Board. Two decisions of our Supreme Court establish that even after a sentence to the Board's custody has been pronounced, the court possesses continuing jurisdiction to amend that sentence until the defendant has been actually transferred to the Board's custody under the original sentence and commitment. State v. McGonigal, 122 Idaho 939, 940, 842 P.2d 275, 276 (1992); State v. Johnson, 101 Idaho 581, 585, 618 P.2d 759, 763 (1980).

Instead of imposing a prison term in the Board's custody, the court may suspend the sentence of incarceration and place the defendant on probation pursuant to I.C. § 19-2601(2). In that event, the court's jurisdiction over the defendant continues; the court remains free to revoke or to modify the terms of probation. I.C. §§ 20-221, -222; State v. Oyler, 92 Idaho 43, 47, 436 P.2d 709, 713 (1968). Unless and until the probation is revoked and a sentence of incarceration is executed, the court never loses, and the Board never...