State v. Calley

99 P.3d 616, 140 Idaho 663, 2004 Ida. LEXIS 179
CourtIdaho Supreme Court
DecidedSeptember 30, 2004
Docket30603
StatusPublished
Cited by13 cases

This text of 99 P.3d 616 (State v. Calley) is published on Counsel Stack Legal Research, covering Idaho Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Calley, 99 P.3d 616, 140 Idaho 663, 2004 Ida. LEXIS 179 (Idaho 2004).

Opinion

EISMANN, Justice.

This appeal challenges the authority of a district judge to impose a sentence of incarceration to be served separately from a sentence of incarceration that had been pronounced, but suspended, in another ease. The appellant also alleges that the sentence constituted an abuse of the district judge’s discretion. We affirm the judgment of the district court.

I. FACTS AND PROCEDURAL HISTORY

On December 15, 1998, the defendant-appellant Tyler Calley was sentenced for forgery in Canyon County to a term of seven years in the custody of the Idaho Board of Correction, with the first three years of the sentence fixed and the balance indeterminate. The district court suspended execution of the judgment and placed Calley on probation for four years.

On April 29, 2002, Calley was sentenced in Twin Falls County for felony eluding a peace officer to five years in the custody of the Idaho Board of Correction, with the first three years of the sentence fixed and the balance indeterminate. The district court ordered the sentence consecutive to the sentence in the Canyon County case and remanded Calley to the custody of the sheriff to begin serving the period of incarceration. At that time, Calley was still on probation in the Canyon County case. Eight days later the district court in Canyon County revoked Galley’s probation and ordered that he serve the balance of the sentence in that case.

On June 14, 2002, Calley filed a motion in the Twin Falls County case under Idaho Criminal Rule 35 to correct an illegal sentence. Relying upon State v. Bello, 135 Idaho 442, 19 P.3d 66 (Ct.App.2001), Calley argued that the district court in Twin Falls County did not have authority to impose a period of incarceration that was consecutive to the sentence of incarceration in the Canyon County case, where execution of that sentence had been suspended and he was still on probation. By order entered on June 24, 2002, the district court denied the motion and reissued the judgment of conviction effective as of the date of the order.

Calley timely appealed both his original judgment and the order denying his motion to correct an illegal sentence. The Idaho Court of Appeals first heard the appeal. In an unpublished opinion issued on December 30, 2003, the Court of Appeals held that the district court in Twin Falls County lacked authority to order that its sentence run consecutive to an earlier sentence, the execution of which was still suspended. It therefore modified the sentence to make it concurrent with the sentence in the Canyon County ease. The Court of Appeals also upheld the length of the sentence as not being excessive. We then granted the State’s petition for review. In cases that come before this Court on a petition for review of a Court of Appeals decision, this Court gives serious consideration to the views of the Court of Appeals, but directly reviews the decision of the lower court. Head v. State, 137 Idaho 1, 43 P.3d 760 (2002).

II. ANALYSIS

The primary issue in this case is whether the district court in Twin Falls County had the authority to impose a sentence of incarceration to be served separately from a sentence of incarceration that had been pronounced, but suspended, in the *665 Canyon County case. Relying upon State v. Bello, 135 Idaho 442, 19 P.3d 66 (Ct.App.2001), Calley argues that the district court lacked that authority. In Bello the district court imposed a sentence of incarceration, to begin immediately, and ordered it to be consecutive to a previously pronounced, but suspended, sentence of incarceration in an unrelated federal case. In holding that the district court lacked such authority, the Court of Appeals stated that under Idaho Code § 18-308, “a sentence of imprisonment can be made to run consecutive only to an earlier term of imprisonment. The statute does not authorize a sentencing court to order a term of imprisonment to run consecutive to a term of probation.” 135 Idaho at 445, 19 P.3d at 69.

Idaho Code § 18-308 provides as follows:

When any person is convicted of two (2) or more crimes before sentence has been pronounced upon him for either, the imprisonment to which he is sentenced upon the second or other subsequent conviction, in the discretion of the court, may commence at the termination of the first term of imprisonment to which he shall be adjudged, or at the termination of the second or other subsequent term of imprisonment, as the case may be.

The statute has no application to this situation. By its terms, it only applies when a defendant “is convicted of two (2) or more crimes before sentence has been pronounced upon him for either.” A sentence is pronounced when the judge announces it, even if the judge suspends execution of the judgment. State v. McCool, 139 Idaho 804, 806-07, 87 P.3d 291, 293-94 n. 1 (2004); Peltier v. State, 119 Idaho 454, 808 P.2d 373 (1991); I.C. § 19-2503 (1997). The sentence in the Canyon County case had been pronounced on December 15, 1998, over three years before Calley was sentenced in the Twin Falls County case. Therefore, by its terms § 18-308 does not apply.

Idaho Code § 18-308 is not the source of a court’s authority to impose a cumulative sentence. State v. Lawrence, 98 Idaho 399, 565 P.2d 989 (1977). Under the common law, the courts in Idaho have discretionary power to impose cumulative sentences. State v. Lawrence, 98 Idaho 399, 565 P.2d 989 (1977). Prior to 1972, that common-law authority was modified slightly. Former Idaho Code § 18-308 required consecutive terms of imprisonment in cases that fell within its provisions. Id. In 1972, the statute was amended to make the imposition of consecutive sentences discretionary in the cases within its scope. “[T]he primary effect of the amendment was essentially to reinstate the common law rule which had been modified by the prior statute.” 98 Idaho at 401, 565 P.2d at 991.

Calley argues that because there was no probation at common law, the district court in Twin Falls lacked the common law authority to order that its sentence be consecutive to the sentence in Canyon County. We need not address whether a court can order that a sentence of incarceration be served consecutively to a period of probation in another case because that is not what occurred in this ease.

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Cite This Page — Counsel Stack

Bluebook (online)
99 P.3d 616, 140 Idaho 663, 2004 Ida. LEXIS 179, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-calley-idaho-2004.