U.S. v. Sharp

• Decision Date: 25 January 2008
• Docket Number: No. 34092.,34092.
• Citation: 145 Idaho 403,179 P.3d 1059
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Douglas SHARP, Defendant-Respondent.
• Court: Idaho Supreme Court

179 P.3d 1059

145 Idaho 403

UNITED STATES of America, Plaintiff-Appellant, v. Douglas SHARP, Defendant-Respondent.

No. 34092.

Supreme Court of Idaho, Boise, January 2008 Term.

January 25, 2008.

Brett L. Tolman, United States Attorney, District of Utah, Salt Lake City, Utah, for appellant. Elizabethanne Stevens argued.

Steven B. Killpack, Utah Federal Public Defender, Salt Lake City, Utah, for respondent. Scott K. Wilson argued.

EISMANN, Chief Justice.

We have accepted the following question of law certified by the United States District Court for the District of Utah, Northern Division: "Does an outstanding withheld judgment based on a guilty plea qualify as a conviction under Idaho law?" We answer the question in the affirmative.

I. FACTS AND PROCEDURAL HISTORY

On December 23, 1997, Douglas Sharp pled guilty to felony burglary in the State of Idaho. At the sentencing hearing on February 13, 1998, the district court granted Sharp a withheld judgment and placed him on probation for three years. The conditions of probation included that Sharp pay fines, court costs, and restitution, and that he not possess a firearm.

Sharp successfully completed his probation, but did not move to have his guilty plea set aside and his case dismissed pursuant to Idaho Code § 19-2604(1).¹ About five years after Sharp's probation terminated, he possessed a firearm in the State of Utah. As a result, he was charged in the United States District Court in the District of Utah with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). The case in which Sharp received a withheld judgment in Idaho is the predicate felony for the federal charge.

II. ANALYSIS

As it is ordinarily used, the term "conviction" means the establishing of guilt either by a plea of guilty or by a finding of guilt following a trial. State v. O'Dell, 71 Idaho 64, 68, 225 P.2d 1020, 1022 (1950). "Generally, `judgment' and `sentence' follow `conviction' as separate and distinct aspects of criminal process." State v. Chauncey, 97 Idaho 756, 757, 554 P.2d 934, 935 (1976). That is the meaning of the term as it is used in the relevant criminal statutes.²

Idaho Code § 18-109 defines a public offense as an act or omission in violation of a law which, "upon conviction," may be punished by death, imprisonment, fine, removal from office, or disqualification to hold and enjoy any office of honor, trust or profit in this State. Idaho Code § 19-101 provides, "No person can be punished for a public offense except upon a legal conviction in a court having jurisdiction thereof." Idaho Code § 19-109 states, "No person can be convicted of a public offense unless by the verdict of a jury, accepted and recorded by the court, or upon a plea of guilty . . . ." Thus, a conviction occurs "by the verdict of a jury . . . or upon a plea of guilty" and it must precede punishment. If the word "conviction" meant a judgment of conviction, it could not precede punishment because a judgment of conviction includes the punishment. See State v. Pedraza, 101 Idaho 440, 614 P.2d 980 (1980) (where judgment was pronounced, execution of the sentence suspended, and the defendant was placed on probation, upon revocation of probation the defendant could not be resentenced); I.C.R. 33(b) ("The judgment of conviction shall set forth the plea, the verdict or findings, and the adjudication and sentence").

In State v. Wagenius, 99 Idaho 273, 581 P.2d 319 (1978), we addressed whether defendants granted withheld judgments had convictions enabling them to be punished. Wagenius involved two consolidated appeals. In one, the defendant had pleaded guilty and been granted a withheld judgment which included a requirement that she spend thirty days in jail. In the other, the defendant had been found guilty following a court trial and had been granted a withheld judgment which included a requirement that he pay a fine. We held that each of them had a legal conviction and therefore could be punished.

We conclude that for purposes of I.C. § 19-101 conviction occurs when a verdict or plea of guilty is accepted by the court. Accordingly, where a verdict or plea of guilty has been accepted by the court but judgment on that plea or verdict has been withheld, § 19-101 does not preclude the imposition of criminal punishment, fines and imprisonment, as conditions of that withheld judgment.

99 Idaho at 278, 581 P.2d at 324. In the instant case, Sharp was ordered to pay a fine as a condition of his probation. That could not have happened unless he had a legal conviction.

We have previously recognized that there is a narrower definition of "conviction" that means a judgment of conviction. For example, in State v. O'Dell, 71 Idaho 64, 68, 225 P.2d 1020, 1022 (1950), the Court stated, "In a more technical, legal sense, conviction means the final conclusion of the prosecution against the accused, including the judgment and sentence rendered pursuant to a verdict or plea of guilty, and it is frequently used to denote the judgment or sentence." However, Sharp has not pointed to any Idaho statute in which the word "conviction" means a judgment of conviction, and it clearly does not. A few examples will illustrate this.

Idaho Code § 19-2117 states, "A conviction cannot be had on the testimony of an accomplice. . . ." Idaho Code § 19-2123 requires the court to advise the jury to acquit if "the court deems [the evidence] insufficient to warrant a conviction." Idaho Code § 19-2305 provides, "A general verdict upon a plea of not guilty is either `guilty' or `not guilty,' which imports a conviction or acquittal of the offense charged in the indictment." Idaho Code § 19-2503 requires, "For the purpose of judgment, if the conviction is for a felony, the defendant must be personally present; if for a misdemeanor, judgment may be pronounced in his absence." Idaho Code § 19-2513 states, "Whenever any person is convicted of having committed a felony, the court shall, unless it shall commute the sentence, suspend or withhold judgment and sentence or grant probation, . . . sentence such offender to the custody of the state board of correction." Section 19-2513 expressly requires that a defendant must be convicted of a crime before judgment can be withheld. Indeed, there are many statutes which provide that "upon conviction," a defendant can be sentenced as provided in the statute. See, e.g., I.C. §§ 18-803, 18-1701, 18-3906, 18-6007, 18-7041(2), 25-137, 26-1215, 37-2733(b), 46-304, 59-1010, 63-2309, 72-1011. They reinforce the fact that a conviction under Idaho law must precede punishment, including withholding judgment and placing the defendant on probation.

Sharp relies upon the following statement from State v. Cliett, 96 Idaho 646, 650, 534 P.2d 476, 480 (1975), "Under O'Dell and Medley, when the court has withheld judgment and has not adjudged the defendant's guilt, the defendant has not been convicted." This statement by the Cliett Court is not supported by either the applicable criminal statutes or by the cases upon which the Court relied.

In State v. Cliett, the Court held that a withheld judgment did not constitute a conviction for the purpose of impeaching a witness by showing a prior felony conviction. In reaching that conclusion, the Cliett Court did not address the meaning of the word "conviction" or "convicted" in any criminal statutes. Rather, it relied upon the opinions in State v. Barwick, 94 Idaho 139, 483 P.2d 670 (1971); State v. O'Dell, 71 Idaho 64, 225 P.2d 1020 (1950); and Ex parte Medley, 73 Idaho 474, 253 P.2d 794 (1953). None of those opinions support the statement in Cliett that a defendant granted a withheld judgment has not been convicted.

The Cliett Court first cited State v. Barwick, 94 Idaho 139, 483 P.2d 670 (1971), stating, "Implicit in the Barwick decision is the assumption that where no judgment has ever been entered, there is no valid conviction which can be used for impeachment purposes." 96 Idaho at 649, 534 P.2d at 479. The Cliett Court was incorrect insofar as it interpreted Barwick as implicitly holding that there must be a judgment in order for there to be a conviction under Idaho law.

The criminal judgment at issue in Barwick was a Florida judgment for the felony offense of robbery. The prosecution sought to impeach Barwick by offering documents from a Florida court consisting of a copy of an information, a copy of a judgment and sentence, a copy of the order vacating the judgment and sentence, and a copy of an order of nolle prosequi dismissing the action. In reversing Barwick's judgment and conviction the Barwick Court stated, "Further, since the prosecutor introduced the order vacating the judgment and the nolle prosequi, he must have known that there had been no valid conviction against appellant." 94 Idaho at 143, 483 P.2d at 674. The Court did not state that there was no conviction because the judgment was vacated. It stated that the order vacating the judgment and the nolle prosequi showed that there was no conviction. "The words `nolle prosequi' are a Latin expression which translated literally mean `to be unwilling to prosecute.'" Wilson v. Renfroe, 91 So.2d 857, 859 (Fla.1957). It is a dismissal of the case without prejudice.³ In Barwick's Florida case, the order of nolle prosequi was entered one and one-half months after the judgment and sentence were vacated. Once the judgment and sentence had been vacated, the Florida prosecutor was apparently unwilling to continue with the prosecution and elected to dismiss the case without prejudice. In such situation, there would be no "conviction" in the sense of a determination of guilt. Thus, Barwick only stands for the proposition that when a judgment, sentence, and conviction were vacated apparently for some error, the defendant does not have a conviction.

The second case upon which the Cliett Court relied was State v. O'Dell, 71 Idaho 64, 225 P.2d 1020 (1950). The defendant in O'Dell challenged the jury's...