State v. Schaffer

739 P.2d 323, 112 Idaho 1024, 1987 Ida. LEXIS 311
CourtIdaho Supreme Court
DecidedMay 21, 1987
Docket15869, 15870
StatusPublished
Cited by19 cases

This text of 739 P.2d 323 (State v. Schaffer) 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. Schaffer, 739 P.2d 323, 112 Idaho 1024, 1987 Ida. LEXIS 311 (Idaho 1987).

Opinions

[1026]*1026DONALDSON, Justice.

On August 26, 1983, Robert and Sara Schaffer were charged with violating I.C. § 37-2732, i.e., manufacturing a controlled substance (marijuana) and possession of a controlled substance (marijuana), with intent to deliver. On the same day, Schaffers’ residence was searched pursuant to a search warrant issued on the previous day. After a preliminary hearing, informations were filed on September 27, 1983, holding the Schaffers to answer for the aforementioned crimes. Thereafter, the Schaffers entered a plea of not guilty to all charges.

Prior to trial, appellants filed a motion to suppress the evidence seized pursuant to the search warrant, claiming that the search was illegal, and asked that the charges against them be dismissed. After a hearing, the Hon. Watt Prather denied their motion to suppress. The appellants also filed a motion to disqualify Judge Prather, pursuant to I.C.R. 25(a). The motion was denied on the grounds that it was untimely.

The trial commenced on November 26, 1984. During the course of jury voir dire examination, appellants’ challenge for cause as to a particular juror was denied, and therefore, appellant used one of his peremptory challenges. Subsequently, appellants made an additional challenge for cause on the last juror called for the panel, which was again denied. Since the appellant had used all of his peremptory challenges, that juror remained on the panel. Thereafter, the jury returned guilty verdicts against both appellants.

On appeal, appellants contend that: (1) the trial judge erred when he denied their motion for automatic disqualification pursuant to I.C.R. 25(a); (2) that the trial court erred by denying appellants’ motion to suppress evidence; and (3) that the trial court erred in denying appellants’ motion to disqualify two jurors for cause and, thereby, allowing one of the biased jurors to remain on the jury which rendered a verdict against the appellants. Additionally, amicus curiae, on behalf of appellants, argues that the prosecutor’s late disclosure of discoverable evidence constitutes reversible error. For reasons set forth below, we reverse and remand.

I

Initially, appellants contend that the trial judge erred by denying their motion for his automatic disqualification pursuant to I.C.R. 25(a). That rule provides that a judge may be disqualified by the filing of a motion of disqualification and that such motion shall be automatic if timely filed. The same rule provides that “such motion must be made not later than five days after service of a notice setting the action for trial____” 1 The record indicates the following: The clerk of the court issued an order of trial setting on October 17, 1983, and certified that a copy thereof was mailed to appellants’ attorney on the same day. The order for trial setting was not stamped “filed,” on the court file, however, until October 25, 1983. Appellants’ attorney received the notice on October 31,1983, and mailed his motion of disqualification that same day. The envelope in which he received the notice bore a post office stamp dated October 26, 1983. Thereafter, the motion of disqualification was received and filed in the court file by the court clerk on November 2, 1983.

Judge Prather, in finding that appellants’ motion was untimely filed, relied upon the October 17, 1983, Certificate of Mailing. Appellants contend, however, that the evidence clearly indicates that the actual service for mailing occurred on October 26, 1983, rather than October 17, 1983. Thus, appellants assert that the filing of their motion of disqualification was timely and, therefore, should have been granted.

In criminal proceedings the service and filing of papers are governed by the Idaho Rules of Civil Procedure. I.C.R. 49(a). I.R.C.P. 5(b) provides that service by mail is complete upon mailing. Here, a factual dispute exists as to when the notice was [1027]*1027put in the mail. The court clerk’s Certificate of Mailing is dated October 17, 1983, whereas the envelope is postage stamped October 26, 1983, which is one day after the notice was filed by the court. The trial court found the mailing to have occurred on October 17, 1983. That particular finding of fact by the trial court will not be disturbed on appeal unless it is clearly erroneous, and clear error will not be deemed to exist if such finding is supported by substantial and competent, although conflicting evidence. Klein v. Shaw, 109 Idaho 237, 241, 706 P.2d 1348, 1352 (Ct.App.1985); I.R.C.P. 52(a).

After reviewing the record, we hold that the clear weight of the evidence demonstrates that the notice was deposited in the mail no earlier than October 25, 1983, rather than October 17, 1983. The only evidence supporting the finding that the notice was put in the mail on October 17th is the Certificate of Mailing. On the other hand, the evidence supporting that the notice was mailed on October 25th, is that (1) the notice was filed on October 25th, (2) the post office stamped the envelope containing the notice on October 26th, and, (3) the notice was not received until October 31. It is difficult to believe that the notice was placed in the mail on October 17th, yet not post office stamped until October 26. Considering this fact along with the date of filing and the receipt of the notice by appellants, we hold the trial court erred in finding that the service of notice was complete on October 17, 1983.

As previously noted herein, I.R.C.P. 5(b) provides that service by mail is complete upon mailing. Having determined that the trial court’s finding is clearly erroneous, we must now decide whether appellant’s motion was timely filed.

First, when computing the amount of days in which appellants had to file their motion, the first day is excluded while the last day is included. I.C. § 73-109; I.R. C.P. 6(a). Thus, in this case, the time began to run on October 26, 1983. Additionally, I.R.C.P. 6(e)(1) provides that, “[w]he-never a party has the right ... to do some act ... within a prescribed period after the service of a notice [by mail], ... (3) days shall be added to the prescribed period.” Therefore, appellants had eight days from October 26, 1983 to file their motion of disqualification. Since appellants’ motion was filed by the court on November 2, 1983, (the eighth day), we hold that it was timely filed. Because the motion was denied below, we must reverse and remand this case for a new trial.

II (A)

Although our ruling on the issue above is dispositive, we choose to address the suppression of evidence issue to avoid the issue arising again in the new trial. Appellants argue that the trial court should have suppressed the evidence seized at their residence because the description of the premises presented at the probable cause hearing was deficient and, because the location of the premises named in the search warrant was learned as a result of a prior illegal search.2 We will address each separately.

A search warrant must describe the place to be searched with particularity. U.S. Const., amendment IV; Id. Const., art. 1, § 17; I.C.R. 41. The test for determining sufficiency of the description of the place to be searched is whether the “officer with the search warrant can, with reasonable effort, ascertain and identify the place intended.” (Citation omitted.) State v. Carlson,

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State v. Schaffer
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Bluebook (online)
739 P.2d 323, 112 Idaho 1024, 1987 Ida. LEXIS 311, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-schaffer-idaho-1987.