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State v. Scott Richard Hanson

February 25, 2011

STATE OF IDAHO, PLAINTIFF-RESPONDENT,
v.
SCOTT RICHARD HANSON, DEFENDANT-APPELLANT.



Appeal from the District Court of the Fifth Judicial District, State of Idaho, Gooding County. Hon. John K. Butler, District Judge.

The opinion of the court was delivered by: Melanson, Judge

2011 Opinion No. 5

Stephen W. Kenyon, Clerk

Order revoking probation and execution of previously suspended sentence, affirmed; order granting I.C.R. 35 motion for reduction of sentence, affirmed.

Scott Richard Hanson appeals from the district court's order revoking his probation and executing his previously suspended sentence and the order granting his Idaho Criminal Rule 35 motion for reduction of sentence. For the reasons set forth below, we affirm.

I. FACTS AND PROCEDURE

Hanson pled guilty to felony driving under the influence, Idaho Code Sections 18-8004 and 18-8005, and was sentenced to a unified term of ten years, with a minimum period of confinement of four years. However, the district court retained jurisdiction for 180 days pursuant to I.C. § 19-2601(4).*fn1 Following Hanson's rider, the district court suspended Hanson's sentence and placed him on probation for four years.*fn2 Hanson's terms of probation required that he refrain from consuming alcohol and that he obtain substance abuse and mental health treatment. Approximately two months after being placed on probation, Hanson submitted to a blood alcohol concentration (BAC) test, which indicated that he had recently consumed alcohol.

A motion to revoke probation was filed, and Hanson admitted to violating his probation based on the failed BAC test. The district court agreed to delay disposition on the probation violation and allowed Hanson to be released on his own recognizance if he agreed to obtain a prescription for Antabuse.*fn3 Two months later, the state moved to revoke Hanson's release because he failed to obtain the prescription as required by the conditions of his release. At disposition on his probation violation, Hanson stated that he was an alcoholic who drank because he was depressed. Hanson also explained that his failure to obtain Antabuse was due to the financial difficulty caused by his drinking and the suspension of his driver's license. The district court recognized that Hanson was depressed and determined that Hanson could not be successfully supervised within the community. As a result, the district court revoked Hanson's probation and ordered execution of his previously suspended sentence. Hanson requested that the court reduce his sentence under I.C.R. 35 so that he may be placed in the substance abuse treatment program while incarcerated. The district court granted Hanson's Rule 35 motion and reduced his sentence to a unified term of ten years, with a minimum period of confinement of two years. Hanson appeals.

II. ANALYSIS

Hanson argues on appeal that the district court erred when it failed to sua sponte order a mental health examination under I.C. § 19-2524 prior to disposition of his probation violation. Hanson further asserts that the district court abused its discretion by revoking Hanson's probation, ordering execution of his sentence, and declining to further reduce his sentence under Rule 35.

A. Mental Health Examination Pursuant to I.C. § 19-2524

Hanson contends that the district court erred when it failed to sua sponte order a mental health examination under I.C. § 19-2524. Hanson concedes that he did not object to the district court's failure to order such an examination prior to disposition of his probation violation. This Court will not address an issue not preserved for appeal by an objection in the trial court. State v. Rozajewski, 130 Idaho 644, 645, 945 P.2d 1390, 1391 (Ct. App. 1997). Nevertheless, Hanson urges this Court to apply the same analysis in this case that it has used in previous cases to allow review of a district court's failure to sua sponte order a psychological examination under I.C. § 19-2522. The issue of whether a district court has erred by failing to sua sponte order an I.C. § 19-2524 mental health examination prior to disposition on a probation violation is one of first impression in Idaho.

When a defendant has pled guilty to or been found guilty of a felony, or when a defendant who has been convicted of a felony has admitted to or been found to have committed a violation of a condition of probation, the court, prior to the sentencing hearing or the hearing on revocation of probation, may order the defendant to undergo a substance abuse assessment and/or a mental health examination.

(Emphasis added). The statute specifically provides that a court "may" order the defendant to submit to a mental health examination. The word "may" is permissive and denotes an exercise of discretion. See State v. Harbaugh, 123 Idaho 835, 837, 853 P.2d 580, 582 (1993). Thus, a court possesses discretion to order or decline to order a mental ...


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