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State v. Gamino

April 14, 2010


Appeal from the District Court of the Fifth Judicial District, State of Idaho, Blaine County. Hon. Robert J. Elgee, District Judge.

The opinion of the court was delivered by: Lansing, Chief Judge

2010 Opinion No. 26

Order denying motion to dismiss probation violation proceedings and order extending term of probation, reversed.

Harrison Gamino appeals from the district court's order denying Gamino's motion to dismiss probation violation proceedings and extending his period of probation. We conclude that the State's petition to revoke Gamino's probation was untimely, and we therefore reverse the district court's orders.


In February 2004, Gamino pleaded guilty to burglary. On May 10, 2004, the district court imposed a unified sentence of seven years with five years determinate, but suspended execution of the sentence and placed Gamino on probation for four years. The judgment of conviction was filed the same day. Among other terms, the conditions of Gamino's probation required that he pay restitution, court costs, court fees and fines.

In May of 2008, the prosecutor submitted a motion to revoke Gamino's probation, alleging that he had violated probation terms during the probationary period by failing to fully pay restitution, court costs, court fees and fines. The prosecutor signed the motion on May 9, 2008, one day before Gamino's four-year probationary period would expire, but the prosecutor did not file the document. Instead, the motion was delivered to "court personnel" awaiting the district court's signature. The district court signed the petition on May 14,*fn1 and it was filed two days later on May 16.

Thereafter, Gamino filed a motion to dismiss the probation violation proceeding. He contended that under Idaho Code § 20-222, any action to revoke probation must be commenced within the probation term, and because the prosecutor's motion here was not filed until six days after expiration of Gamino's probation, the motion was untimely and the district court was without authority to adjudicate the matter. In response to Gamino's motion, the prosecutor contended that under the provisions of I.C. § 19-2602, probation violation proceedings are timely if they are initiated anytime within the longest period that Gamino originally might have been sentenced, which in the case of a burglary conviction is ten years.

The district court first concluded that probation violation proceedings are commenced as of the date of the file-stamp on the State's motion, a point that is not disputed by the State. After considering the conflicting provisions of the two statutes at issue, the district court concluded that I.C. § 19-2602 controlled and that the probation violation proceedings were timely under that statute. The district court therefore denied Gamino's motion to dismiss the proceedings for untimely filing. The court ultimately found Gamino in violation of his probation conditions and placed him back on probation, extending the probationary period by two years. Gamino appeals, contending that the district court incorrectly resolved the conflict between I.C. §§ 20-222 and 19-2602.


The proper application and construction of a statute is an issue of law over which we exercise free review. State v. Callaghan, 143 Idaho 856, 858, 153 P.3d 1202, 1204 (Ct. App. 2006); State v. Reyes, 139 Idaho 502, 505, 80 P.3d 1103, 1106 (Ct. App. 2003). When interpreting statutes, this Court strives to give force and effect to the legislature's intent. Id. Statutes that are in pari materia, i.e., relating to the same subject, should be construed harmoniously, if possible, so as to further the legislative intent. Callaghan, 143 Idaho at 858, 153 P.3d at 1204; State v. Maland, 124 Idaho 537, 540, 861 P.2d 107, 110 (Ct. App. 1993). Thus, we must reconcile apparent inconsistencies between statutes if it is possible to do so. State v. Pedraza, 101 Idaho 440, 442, 614 P.2d 980, 982 (1980); Christensen v. West, 92 Idaho 87, 88, 437 P.2d 359, 360 (1968); Sampson v. Layton, 86 Idaho 453, 457, 387 P.2d 883, 885 (1963). If two statutes are in irreconcilable conflict, however, the more recently enacted statute governs. State v. Killinger, 126 Idaho 737, 740, 890 P.2d 323, 326 (1995); Mickelsen v. City of Rexburg, 101 Idaho 305, 307, 612 P.2d 542, 544 (1980).

No Idaho statute or court rule expressly prescribes a time limit for filing a motion for probation revocation, but the two statutes at issue here identify that time limit inferentially by specifying when a bench warrant for a probation violation may issue. These statutes are, however, in conflict on this point. Idaho Code § 20-222 addresses the time limit as follows:

At any time during probation or suspension of sentence, the court may issue a warrant for violating any of the conditions of probation or suspension of sentence and cause the defendant to be arrested. Thereupon the court, after summary hearing may revoke the probation and suspension of sentence and cause the sentence imposed to be executed, or may cause the defendant to be brought before it and may continue or revoke the probation, or may impose any sentence which originally might have been imposed at the time of conviction. (Emphasis added.) Conversely, I.C. § 19-2602 states:

If it is proved to the satisfaction of the court that the terms and conditions upon which the defendant was placed on probation by the court or any of them have been violated or for any other cause satisfactory to the court, the court may, at any time within the longest period for which the defendant might have been originally sentenced by judgment of the court, issue a bench warrant for the rearrest of the defendant. (Emphasis added.) Thus, I.C. § 20-222 requires that an arrest warrant for a probation violation issue during "probation or suspension of sentence" while I.C. § 19-2602 allows such a warrant to issue "at any time within the longest period ...

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