Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Michael R. McLaughlin, District Judge.
The opinion of the court was delivered by: Lansing, Chief Judge
Third amended judgment of conviction, vacated, and original judgment, reinstated.
Joshua Lee Bosier appeals from the entry of his third amended judgment of conviction for possession of a controlled substance and argues that the district court erred by amending his formerly concurrent sentence to convert it to a consecutive sentence. We vacate the district court's third amended judgment of conviction and reinstate the original judgment.
Bosier pleaded guilty to felony possession of a controlled substance, Idaho Code § 37-2732(c), and the district court imposed a unified seven-year term of imprisonment with three years fixed. The court specified that the sentence would be concurrent with another Ada County case but was silent concerning the sentence's relation to Bosier's sentences in some Canyon County cases. The court suspended Bosier's sentence and placed him on probation for seven years. A month after sentencing, however, the district court summoned Bosier for another hearing. The court explained that it did so because at the time of Bosier's original sentencing, it had been under the mistaken belief that Bosier had an opportunity for retained jurisdiction, and ultimately probation, in one of his other cases, but jurisdiction had in fact been relinquished in that case. At this second sentencing hearing, the district court amended Bosier's judgment of conviction to give him the same sentence but without the order of suspension and probation. That is, the court effectively revoked Bosier's probation. The court also ordered that the sentence was to run "concurrent with the other cases that have him in the penitentiary," which upon further discussion, included an Ada County case and one of three Canyon County cases of which the court was aware.*fn1 Subsequently, acting upon a letter written by Bosier that the court treated as an Idaho Criminal Rule 35 motion to reduce his sentence, the court entered a second amended judgment of conviction reducing Bosier's fixed term to two years.
Bosier appealed. In an unpublished opinion, State v. Bosier, Docket No. 34745 (Ct. App. Apr. 29, 2009), this Court held that the district court had violated Bosier's right to due process by revoking his probation without notice and an adequate opportunity to be heard. We therefore vacated the first and second amended judgments of conviction and remanded the case for "reinstatement of the original probation." Id.*fn2
After a hearing on remand, the district court entered a third amended judgment of conviction that restored Bosier's probation but also once again redefined his underlying sentence by directing that it run concurrent with the Ada County sentence but consecutive to the Canyon County sentences. The district court also directed that the probation period would commence when Bosier was released from prison.
Although Bosier did not object to these modifications in the district court, he again appeals. He argues that the district court was without jurisdiction to amend his sentence to run consecutively to the Canyon County sentences and to commence upon Bosier's release from prison, rather than on October 3, 2007 as originally ordered, because this Court had reinstated the original suspended sentence, which ran concurrently with probation commencing immediately. He also contends that the district court's sentence on remand was vindictive and therefore constituted a violation of due process. The State concedes that it was error for the court to alter the original judgment by delaying commencement of the probationary term, but contends that it was permissible for the court to order that any term of imprisonment that might be served in the present case in the event of revocation of Bosier's probation would be served consecutive to the Canyon County sentences.
We conclude that the district court on remand lacked jurisdiction to make the modifications of the original judgment, and we therefore vacate the district court's third amended judgment of conviction.
A. The Question of Subject Matter Jurisdiction Was Not Waived by Failure to Raise it Below
The State first argues that Bosier may not assert on appeal that the district court lacked jurisdiction to amend Bosier's sentence on remand because Bosier did not object to the amendment below. The State's argument fails, however, because a challenge to a court's subject matter jurisdiction may be brought at any time. State v. Lundquist, 134 Idaho 831, 835, 11 P.3d 27, 31 (2000); State v. Diggie, 140 Idaho 238, 240, 91 P.3d 1142, 1144 (Ct. App. 2004). A court's lack of subject matter jurisdiction cannot be waived by a party, and the parties cannot consent to the court's assumption of jurisdiction through conduct or acquiescence, nor be estopped from asserting its absence. State v. Armstrong, 146 Idaho 372, 374, 195 P.3d 731, 733 (Ct. App. 2008). A claim that the district court lacked subject matter jurisdiction to modify a ...