Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. John T. Mitchell, District Judge.
The opinion of the court was delivered by: Gratton, Chief Judge
Order imposing second period of retained jurisdiction, vacated; order suspending sentence and imposing term of probation, vacated.
The district court placed Patrick Thomas Dicksen on probation for twenty-six hours following a period of retained jurisdiction (rider). Thereafter, the court unilaterally revoked Dicksen's probation and placed him on a second rider. The State appeals from the district court's order contending that the court ordered a sham probation in order to circumvent the jurisdictional limits of Idaho Code § 19-2601(4).
I.FACTS AND PROCEDURAL BACKGROUND
Dicksen was charged with two counts of statutory rape. Pursuant to a plea agreement, Dicksen pled guilty to an amended charge of felony injury to a child, and the State agreed to dismiss the remaining count. On August 26, 2009, the district court entered a judgment of conviction and imposed a unified sentence of three years, with one year being determinate, and retained jurisdiction for a period of 180 days. Near the conclusion of the retained jurisdiction period, which was set to expire on February 22, 2010, the district court received a review report from the North Idaho Correctional Institution (NICI) recommending that the court relinquish jurisdiction.
At a review hearing held on February 4, 2010, the State argued that the Department of Correction's recommendation to relinquish jurisdiction was reasonable in light of Dicksen's disciplinary problems, as well as the inability to identify his risk factors for sexual re-offense. Dicksen acknowledged his disciplinary offenses, but argued that he had completed a number of programs while at NICI and was making progress, and that he had a positive support group that would help him successfully complete probation. After hearing the parties' arguments, the district court advised Dicksen that it was not willing to place him on probation or relinquish jurisdiction. Consequently, the court concluded that it would place Dicksen on probation for twenty-six hours, revoke probation, and immediately send Dicksen on a second rider.
The following day, on February 5, 2010, the district court entered a written order entitled "Retained Jurisdiction Disposition and Notice of Right to Appeal," in which the court noted that Dicksen had been placed on probation for a period of twenty-six hours upon the following term and condition: "You shall remain in custody at the Kootenai County Jail, and you shall obtain a recommendation for probation from Brad Lutz, Program Manager at North Idaho Correctional Institution, by no later than 5:00 p.m. on February 5, 2010." The court found Dicksen to be in violation of his probation by "[h]aving failed to provide such documentation by 5:00 p.m. on February 5, 2010."*fn1 Based upon this violation, the district court revoked Dicksen's probation, ordered him "committed to the custody of the Idaho State Board of Correction," and retained jurisdiction a second time. The State appealed.*fn2
The State argues that the district court could not extend its jurisdiction by ordering a sham probation, following the initial period of retained jurisdiction, for the sole purpose of circumventing the jurisdictional limitation of I.C. § 19-2601(4), which prohibits the ordering of consecutive periods of retained jurisdiction without an intervening period of probation. At the review hearing, after the State had argued that the district court should follow the Department's recommendation and relinquish jurisdiction, and Dicksen had argued that the court should place him on probation, the court issued its ruling, stating:
Mr. Dicksen, I am -- I'm not willing to put on you probation, and, on the other hand, I'm not willing to just walk away from this and relinquish jurisdiction, so here's what I'm gonna do, and both parties can do what they want to do with this decision.
I'm going to place you on probation for twenty-four hours. I'm going to revoke it tomorrow night at five, then I'm going to send you on another rider. Right now I don't have the ability, according to Idaho case law, to do a consecutive retained jurisdiction. If between now and tomorrow at five you or your attorney gets a letter based on this dismissal that their recommendation's changing, then I'd be happy to reconsider my decision, but unless I hear differently, I'm going to send you on a second period of retained jurisdiction starting tomorrow night at five o'clock in the afternoon, and so I expect you to go back to Cottonwood, and I expect you to obey their rules this time around.
There -- I appreciate your sincerity in wanting to do well, but you didn't do anything in the last, uh, six months to indicate by a track record that you will do well. The offense in question is serious enough that I can't put society at risk if you haven't really learned how to change your behavior, so for those reasons I'm simply not willing to place you on probation, and I may not see a perfect rider ...