State v. Dana Lydell Smith

Opinion

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 38197

STATE OF IDAHO, ) 2011 Unpublished Opinion No. 715 ) Plaintiff-Respondent, ) Filed: November 21, 2011 ) v. ) Stephen W. Kenyon, Clerk ) DANA LYDELL SMITH, ) THIS IS AN UNPUBLISHED ) OPINION AND SHALL NOT Defendant-Appellant. ) BE CITED AS AUTHORITY )

Appeal from the District Court of the Fifth Judicial District, State of Idaho, Minidoka County. Hon. Michael R. Crabtree, District Judge.

Order denying motion for a Faretta hearing, affirmed.

Molly J. Huskey, State Appellate Public Defender; Diane M. Walker, Deputy Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy Attorney General, Boise, for respondent. ________________________________________________

Before GRATTON, Chief Judge; LANSING, Judge; and GUTIERREZ, Judge

PER CURIAM Dana Lydell Smith appeals from the district court’s order denying his motion for a Faretta 1 hearing and motion to alter or amend judgment. Smith contends the district court erred by failing to conduct a Faretta hearing. Alternatively, Smith contends the district court erred by failing to conduct a Faretta hearing before denying his motion to alter or amend the judgment. We affirm. On March 31, 2008, the district court entered a judgment of conviction reflecting Smith’s conviction for grand theft. Smith appealed therefrom and this Court affirmed the judgment in an unpublished opinion. State v. Smith, Docket Nos. 35216 & 35604 (Ct. App. May 20, 2009).

1 Faretta v. California, 422 U.S. 806 (1975).

1 On September 3, 2010, Smith filed a motion for a Faretta hearing, requesting a competency hearing to determine if he could proceed on the criminal case by representing himself. On September 14, 2010, Smith also filed a motion to alter or amend a judgment pursuant to Idaho Rule of Civil Procedure 59(e). On September 24, 2010, the district court issued an order denying Smith’s motion for a Faretta hearing and motion to alter or amend a judgment. Smith filed a notice of appeal on October 15, 2010, timely only from the order issued on September 24, 2010. Notably, the district court denied Smith’s motion for a new trial in an order entered on August 30, 2010. Pursuant to the Supreme Court’s order clarifying jurisdiction, Smith’s appeal is applicable to the denial of his motion for a Faretta hearing only. As to the motion to alter or amend a judgment, the Supreme Court noted Idaho Rule of Civil Procedure 59 is a civil rule only and is not applicable. Under Faretta v. California, 422 U.S. 806 (1975) a defendant has a constitutional right to self-representation, but a waiver of the right to counsel must be done “knowingly and intelligently.” However, a Faretta hearing could be necessary only if there were criminal proceedings pending in which Smith was entitled to counsel. When Smith filed his motion for a Faretta hearing, the motion for a new trial had already been denied and was no longer pending. Additionally, his subsequent Rule 59 motion was unauthorized by any rule or statute, so nothing was pending for which he had a waivable right to counsel. Hence, there was no basis for a Faretta hearing. Smith has, therefore, failed to show error in the denial of his motion for a Faretta hearing. Accordingly, we affirm the district court’s order denying Smith’s motion for a Faretta hearing.