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State of Idaho v. Mary Summers

November 2, 2011

STATE OF IDAHO, PLAINTIFF-APPELLANT-CROSS RESPONDENT,
v.
MARY SUMMERS, DEFENDANT-RESPONDENT-CROSS APPELLANT.



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: Schwartzman, Judge Pro Tem

2011 Opinion No. 64

Stephen W. Kenyon, Clerk

Order of the district court concluding that attempt to obtain a controlled substance by fraud is a misdemeanor, reversed; order denying motions to dismiss for prosecutorial misconduct, affirmed.

The State appeals the district court's order reducing to a misdemeanor Mary Summers' charge of attempt to obtain a controlled substance by fraud. Summers cross-appeals the district court's denial of her motions to dismiss for prosecutorial misconduct. We affirm in part and reverse in part.

I.

FACTUAL AND PROCEDURAL BACKGROUND

The State charged Summers with the attempt to obtain a controlled substance by fraud, by altering a prescription for 40 hydrocodone to 240 hydrocodone, a violation of Idaho Code §§ 37-2734(a)(3) and 18-306. Summers moved to dismiss and/or remand to the magistrate division, claiming the charged crime was a misdemeanor, not a felony. The district court initially denied the motion, finding the charge to be a felony. Summers moved for reconsideration and the district court granted the motion, concluding that I.C. § 18-306 was ambiguous and should be resolved in a manner favorable to the defendant. The case was then remanded to the magistrate division as a misdemeanor crime.

The State timely appealed. Summers cross-appealed, contending that the district court's decisions denying her two motions to dismiss for prosecutorial misconduct were erroneous. She alleges that at the time set for her preliminary hearing, the prosecutor misrepresented to the court that a material witness could not be subpoenaed. Summers also asserts that the prosecutor then coerced her into agreeing to a continuance of the hearing by stating that if she did not agree to one and obtained a dismissal, he would refile the charge and request a warrant for her arrest. Summers claims that the prosecutor's conduct violated her due process rights and seeks dismissal of the charge against her.

II.

DISCUSSION

A. The Attempt to Obtain a Controlled Substance by Fraud

The crime of obtaining a controlled substance by fraud, misrepresentation, forgery, deception, or subterfuge is a felony, punishable upon conviction by imprisonment for not more than four years, or by fine of not more than $30,000, or both. I.C. § 37-2734(a)(3) and (b). Because Summers was charged with an attempt and not a completed offense, her potential sentence is governed by I.C. § 18-306. The State claims the attempt to obtain a controlled substance by fraud remains a felony under the plain meaning of I.C. § 18-306(5) because the completed crime is punishable by both imprisonment (four years) and a fine ($30,000).

Summers argues that I.C. ยง 18-306(3), making the offense a misdemeanor, should be applied because the completed crime is punishable by imprisonment for less than five years and the rule of lenity requires an ambiguous ...


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