Appeal from the District Court of the Third Judicial District of the State of Idaho, Canyon County. Honorable Juneal C. Kerrick, District Judge.
The opinion of the court was delivered by: J. Jones, Justice.
Francisco Augustin Urrabazo appeals the sentence imposed by the district court. Because Urrabazo's appeal is untimely, we dismiss.
I. Factual and Procedural History
On August 8, 2005, Francisco Urrabazo pleaded guilty to statutory rape, felony battery on a police officer, and misdemeanor battery. The statutory rape charge was filed in a different case than the battery charges, but the two cases were considered together for the purposes of sentencing. On November 7, 2005, the district court sentenced Urrabazo to a unified sentence of ten years with three years fixed for statutory rape and a concurrent unified sentence of five years with three fixed for the felony battery charge. However, the court retained jurisdiction in both cases for a period of 180 days.
The district court held a hearing on May 1, 2005, to review Urrabazo's progress. At the hearing, the State acknowledged that Urrabazo "had a good six months," but indicated it was still concerned about Urrabazo's use of alcohol, that he failed to recognize the severity of the situation, and "that it was unclear if the level to re-offend [had] gone down." The court continued the hearing until May 5, 2006, because "it was a close question on whether or not the court should place [Urrabazo] on probation or relinquish jurisdiction." The court also recognized that its jurisdiction expired the following day, on May 6, 2006.
At the May 5 hearing, the district court initially determined it would relinquish jurisdiction and impose the original sentence. The court "advised counsel that the defendant was not ready for probation at this time, however, the Court felt that a Rule 35 motion would be appropriate" if defense counsel wished to argue for a reduction in Urrabazo's sentence. Urrabazo's counsel also suggested that the "State had floated the possibility of a second rider." After a recess, Urrabazo's counsel moved, pursuant to Rule 35, for a reduction in Urrabazo's sentence in the form of a second period of retained jurisdiction. In making its determination on the issue, the court acknowledged Urrabazo's progress during the first rider, and noted that his failure to complete a sexual offender treatment program was not for lack of cooperation but, rather, was due to an inability to complete the assignments in the time provided. However, the court remained concerned about placing Urrabazo on probation in the same city where the rape victim resided, and recognized a continued need for anger management and substance abuse treatment. The court therefore concluded Urrabazo was not ready for probation at that time. The court ordered relinquishment of its retained jurisdiction, but then granted Urrabazo's Rule 35 motion by ordering a second 180-day period of retained jurisdiction.
Two months into the second rider, the district court received an updated report regarding Urrabazo's progress. After reviewing the updated report, the court relinquished its jurisdiction pursuant to the second rider in an order filed on July 28, 2006. The order stated: "The Court's paramount concern for public safety, together with a lack of confidence in Defendant Urrabazo's ability to control his conduct for an extended [period] of time, and to accomplish rehabilitation in the less-structured setting of a community-based probation, support a decision to relinquish jurisdiction."
Urrabazo filed an appeal on September 8, 2006, 42 days after the July 28 order, alleging that the district court abused its discretion in relinquishing jurisdiction, and that the sentences imposed were excessive. Urrabazo argues that consecutive riders, without an intervening period of probation, is consistent with the provisions and intent of I.C. § 19-2601(4). The State contends this Court should not consider the merits of Urrabazo's claims on appeal, arguing that the district court lacked jurisdiction to order a successive period of retained jurisdiction, that Urrabazo's 42 days for filing an appeal commenced running at the end of the first period of retained jurisdiction, that the district court had no jurisdiction to extend the time for filing an appeal, and that Urrabazo's late appeal should therefore be dismissed.
1. Does I.C. § 19-2601(4) require a period of probation prior to ordering a second period of retained jurisdiction?
2. If the statute does require an intervening period of probation, was the district court without subject matter ...