Appeal from the District Court of the Fifth Judicial District of the State of Idaho, in and for Cassia County. The Hon. Michael R. Crabtree, District Judge.
The opinion of the court was delivered by: Eismann, Chief Justice.
The judgment of the district court is vacated.
This is an appeal following a conditional plea of guilty to the crime of felony stalking. We vacate the judgment and remand for further proceedings that are consistent with this opinion.
I. FACTS AND PROCEDURAL HISTORY
On January 2, 2008, the Cassia County prosecutor filed a complaint charging Clifford Stewart (Defendant) with the crimes of stalking in the first degree, a felony, and violating a no contact order, a misdemeanor. As required by Idaho Criminal Rule 3, the prosecutor also filed the sworn affidavit of a complainant, a deputy sheriff, who submitted an affidavit setting forth the facts supporting the charges based upon information received from the victim. At his initial appearance, Defendant waived his right to a preliminary hearing on the stalking charge,*fn1 and he was bound over to the district court.
On January 17, 2008, the prosecutor filed an information in the district court charging Defendant with stalking in the first degree and with violating a no contact order. Defendant was arraigned on January 31, 2008, and he entered pleas of not guilty to both charges.
On April 25, 2008, Defendant filed a motion to dismiss ―for the reason that the State's Affidavit of Probable Cause does not state a course of conduct, as is necessary in the Statutes.‖ That motion was argued four days later by Defendant's counsel and the prosecuting attorney. At the beginning of the hearing, the State was granted permission to file an amended information that had been prepared by a deputy prosecutor.
Defendant argued that, based upon information from a deputy prosecutor, there was insufficient evidence to convict him of the felony charge. In August 2007, Defendant had been convicted of misdemeanor stalking in Minidoka County based upon conduct concerning the same victim. The misdemeanor stalking statute, Idaho Code § 18-7906, requires for conviction a ―course of conduct‖ that the statute defines as wrongful. It defines a ―course of conduct‖ as ―repeated acts of nonconsensual contact involving the victim or a family or household member of the victim.‖ Idaho Code § 18-7906(2)(a). The felony statute, Idaho Code § 18-7905, requires:
(a) that the defendant commit the crime of stalking as defined in the misdemeanor statute (which requires a course of conduct) and (b) that there be one of six additional circumstances. Defendant argued that the State's theory was that the prior misdemeanor conviction could satisfy the course-of-conduct requirement for the felony charge. Defendant argued that such construction does not comply with the statute and would violate the Double Jeopardy Clause. He contended that in order to commit a felony, there must be an additional course of conduct that could constitute misdemeanor stalking in addition to one of the six listed circumstances.
In response, the prosecutor stated that he disagreed with Defendant's reading of the statute. The prosecutor contended that the felony stalking statute should be construed like the felony DUI statute. He argued, ―There are lots of cases, there's lots of statutes that have enhancements for additional violations of the same crime. You've got enhanced DUIs, you've got felony DUIs, you've got lots of different kinds of cases where there are enhancements.‖
The district court stated that Defendant seemed to be asserting that the State merely lacked sufficient evidence to prove the felony offense and asked whether Defendant was asking for a preliminary hearing. Defendant answered that he only needed the court to resolve the legal issue. The prosecutor then agreed, stating that they needed a ruling on how the statute should be interpreted. The prosecutor argued:
What we really need in this case, your Honor, and we do need a Court's determination, and that is whether or not this course of conduct -- There is only the one act on the -- on this felony. I mean, we're saying that if you -- that this means if you've been convicted of a stalking and you do it again, it's a felony. And they're saying that when you do it again, you've got to do it at least a couple of times to get to course of conduct. We're saying that the course of conduct can go back to the prior action. So I think we do need a ruling on the statute itself as to what that means. It's not a question of us going back and adding more, because the victim in this case did not wait until there was -- she was victimized, and then she gets victimized again, and that's when she wanted us to bring a felony, which we did. She didn't want to wait, and we didn't want her to have to wait until she was victimized two or three times to meet this course of conduct. (Emphases added.)
Thus, the issue presented to the district court was whether the State could use the prior course of conduct upon which Defendant's misdemeanor conviction was based to satisfy the course-of-conduct requirement for felony stalking. When deciding this motion to dismiss, the district court did not address that issue. On June 4, 2008, it entered an order granting the motion to dismiss the amended information on the grounds: (1) that it did not allege any facts supporting the requirement that Defendant acted ―knowingly‖; (2) that it did not allege facts showing a ―course of conduct‖; and (3) it did not allege facts supporting the requirement that Defendant's alleged conduct ―would cause a reasonable person substantial emotion [sic] distress.‖ The court gave the State fourteen days to amend its information.
On June 16, 2008, the State filed its second amended information. On July 23, 2008, Defendant filed another motion to dismiss ―upon the grounds and for the reason that the State's Affidavit of Probable Cause does not state a course of conduct, as is necessary in the Statues [sic].‖ That motion was argued on September 29, 2008. Defendant basically restated the arguments he had made at the prior hearing. The deputy prosecutor at the hearing argued, ―The fact of the matter is that the State and the defense and this Court does [sic] not know which repeated acts form the factual basis of his conviction for the second degree misdemeanor stalking case.‖ He then argued that even if Defendant's version of the facts was ...