Kraft v. State

579 P.2d 1197, 99 Idaho 214, 1978 Ida. LEXIS 404

Opinions

McFADDEN, Justice.

Jack Harold Kraft has appealed from a denial of his application for post-conviction relief. Following a jury trial, Kraft was convicted of the crime of rape, from which judgment he appealed to this court. State v. Kraft, 96 Idaho 901, 539 P.2d 254 (1975). In that appeal his judgment of conviction was affirmed, following which he filed a pro se application for post-conviction relief setting forth six “assignments of error.” Several of these issues were specifically dealt with by this court on his appeal from judgment of conviction.¹ Kraft, by counsel, later filed an unverified “Addendum Memorandum for Post Conviction Relief” setting forth as an additional ground for relief a claim of incompetency of his two trial counsel. This issue had been considered by this court on the appeal.²

An answer to Kraft’s pro se petition for post-conviction relief was filed, wherein each specific assignment of error was replied to and which prayed that the petition be dismissed. However, the trial court granted a hearing at which Kraft was the only witness. His testimony at the hearing was primarily directed towards the incompetency of his first and second counsel, only the latter of which participated in the trial of the rape charge. In this testimony Kraft explained his version of what took place' between himself and his respective counsel. At the conclusion of Kraft’s testimony the court advised that it was not going to grant the State’s motion to dismiss and that it was bound by this court’s resolution of the competency issue, but that if it was not, Kraft had failed to carry his burden of proof. The court also took under advisement an issue concerning the propriety of the sentence imposed.

Before any findings of fact, conclusions of law or order were entered, as required by I.C. § 19^1907,³ Kraft filed a pro se notice of appeal. The trial court in a memorandum opinion recognized that by his precipitous action in prematurely filing the notice of appeal, Kraft may have barred the trial court from ruling on the propriety of the consecutive sentence imposed. However, the trial court did pass on this issue and correctly anticipated this court’s decision in State v. Lawrence, 98 Idaho 399, 565 P.2d 989 (1977).

In view of the fact that this appeal was taken before any final order as required by I.C. § 19-4907 was entered, it must be dismissed as premature. Hamblen v. Goff, 90 Idaho 180, 409 P.2d 429 (1965); Goade v. Gossett, 35 Idaho 84, 204 P. 670 (1922); Stout v. Cunningham, 33 Idaho 83, 189 P. 1107 (1920).

Appeal dismissed.

SHEPARD, C. J., and DONALDSON, BAKES and BISTLINE, JJ., concur.

Footnotes

1

.The “assignments of error” claimed are:

1. The trial court erred when it denied petitioner’s motion to suppress evidence, due to the illegal arrest, search and seizure, all without probable cause.

2. The prosecuting attorney erred when he failed to produce material evidence of sperm reports vital to petitioner’s defense.

3. The prosecuting attorney erred when he introduced collateral and hearsay testimony as to other crimes (burglary), which was completely unconnected with the rape being charged.

4. The conviction is standing on the uncorroborated testimony of the prosecutrix, when the circumstances surrounding the alleged commission of the offense is not clearly corroborative of her statements.

5. The trial court erred when it failed to instruct the jury concerning the credibility of the witnesses, when such instruction would aid the jury in a fair and impartial determination of facts, evidence, and the weight to be given testimony relating to that evidence.

6. The Fifth Judicial District erred when it failed to correct petitioner’s sentence.

2

. This case is illustrative of the difficult decision placed on the shoulders of trial counsel. After trial on the rape charge, other counsel was appointed on his appeal. The new counsel on the appeal raised the issue as to the competency of trial counsel, and this issue was discussed at some length in Kraft’s first appeal, resulting in a holding adverse to Kraft. When facts outside the record are to be used as the basis of a challenge as to the competency of counsel, such issues cannot properly be raised on appeal, but must be-raised by application under the Uniform Post Conviction Procedure Act, I.C. §§ 19 — 4901 to 4911. State v. Congdon, 96 Idaho 377, 529 P.2d 773 (1974). As was pointed out by Justice Bakes in his special concurring opinion in State v. Kraft, supra, the question of the competency of counsel involves many complex issues and in many instances it would be better to reserve such issues for post-conviction proceedings instead of risking the chance that on the appeal such issues would become res judicata without all facts involved being developed. See, State v. Ruth, 98 Idaho 879, 574 P.2d 1357 (1978).

3

. Idaho Code § 19-4907 provides in pertinent part:

The court shall make specific findings of fact, and state expressly its conclusions of law, relating to each issue presented. This order is a final judgment.