State v. Alvarado

970 P.2d 516, 132 Idaho 248

• Court: Idaho Court of Appeals
• Decided: December 4, 1998
• Docket: 24166
• Status: Published

Opinions

PER CURIAM.

Gilbert Rios Alvarado pled guilty to one count of felony eluding a police officer, I.C. § 49-1404(2). He was sentenced to serve a unified three-year sentence, with eighteen months fixed. The court suspended the sentence and placed Alvarado on probation for three years. Following a probation violation, the court revoked Alvarado’s probation and retained jurisdiction for 180 days. On June 23, 1997, at the conclusion of the 180-day period, the district court relinquished jurisdiction without holding a hearing and ordered that Alvarado remain in the custody of the Department of Corrections. Alvarado did not file a direct appeal from the order relinquishing jurisdiction.

On July 18, Alvarado filed an Idaho Criminal Rule 35 motion to correct or reconsider his sentence and memorandum in support thereof, contending that the district court’s decision to relinquish jurisdiction without holding a hearing violated his rights under I.C. § 19-2601(4)¹ and I.C.R. 32(g).² By written order, the court denied the motion on August 13. Alvarado filed his appeal from the district court’s denial of his Rule 35 motion on September 23, 1997. We affirm.

Alvarado argues that when the district court relinquished jurisdiction without holding a hearing, the court imposed sentence in an illegal manner and thus I.C.R. 35 is a proper procedural vehicle to raise this issue. Under that rule, a court may correct a sentence that has been imposed in an illegal manner within 120 days of the relinquishment of jurisdiction.

However, Alvarado’s motion complaining of the ex parte procedure used in relinquishing jurisdiction was not a challenge to the manner in which sentence was imposed. Idaho appellate courts have long adhered to the principle that a sentence is imposed when initially pronounced, even though jurisdiction is retained under I.C. § 19-2601(4) or the sentence is suspended. State v. Ditmars, 98 Idaho 472, 474, 567 P.2d 17, 19 (1977); State v. Omey, 112 Idaho 930, 932, 736 P.2d 1384, 1386 (Ct.App.1987); State v. Salsgiver, 112 Idaho 933, 934, 736 P.2d 1387, 1388 (Ct.App.1987) (“a sentence is deemed ‘imposed’ from the outset.”). Alvarado’s sentence was imposed when judgment was entered, not when jurisdiction was relinquished on June 23, 1997. Therefore, a Rule 35 motion cannot be used as the procedural mechanism to raise this issue.

In order to challenge a district court’s order relinquishing jurisdiction, a defendant must file an appeal within forty-two days of the entry of the court’s order. State v. Swan, 113 Idaho 859, 861, 748 P.2d 1389, 1391 (Ct.App.1988); see also State v. Williams, 126 Idaho 39, 878 P.2d 213 (Ct. App.1994). This Alvarado failed to do, and his Rule 35 motion was filed more than fourteen days after entry of the order relinquishing jurisdiction. See I.A.R. 14(a). Thus, this Court is without jurisdiction to consider the merits of Alvarado’s claim.

We therefore affirm the district court’s denial of Alvarado’s Rule 35 motion.

1 . In relevant part, I.C. § 19-2601(4), as amended in 1995, provides as follows:

In no case shall the board of correction or its agent, the department of correction, be required to hold a hearing of any kind with respect to a recommendation to the court for the grant or denial of probation. Probation is a matter left to the sound discretion of the court. Any recommendation made by the department to the court regarding the prisoner shall be in the nature of an addendum to the presentence report.

2 . Idaho Criminal Rule 32(g) provides, in relevant part, as follows:

Full disclosure of the contents of the presentence report shall be made to the defendant, defendant’s counsel, and the prosecuting attorney prior to any hearing on the sentence except as hereinafter provided. The defendant and defendant’s attorney shall be given a full opportunity to examine the presentence investigation report so that, if the defendant desires, the defendant may explain and defend adverse matters therein. The defendant shall be afforded a full opportunity to present favorable evidence in defendant's behalf during the proceeding involving the determination of sentence.