Appeal from the District Court of the Fourth Judicial District, State of Idaho, Elmore County. Hon. Michael E. Wetherell, District Judge.
The opinion of the court was delivered by: Lansing, Judge
Judgment of conviction for felony driving under the influence, affirmed, sentence vacated, and case remanded for resentencing.
Peter L. Toyne was convicted of felony driving under the influence (DUI), with a sentence enhancement under Idaho Code § 19-2514 for being a persistent violator of the law. The district court imposed a unified sentence of fifteen years, with seven years fixed. Toyne appeals, contending that the district court erred at trial in admitting documentary evidence of Toyne's previous DUI convictions over his objection. He also contends that the district court abused its sentencing discretion by misinterpreting Idaho Code § 19-2514 to require a five-year fixed term of imprisonment for a persistent violator and to prohibit a suspended sentence. We affirm the conviction, but vacate the sentence and remand for resentencing.
A. If a Judgment of Prior Conviction is Admissible Under I.R.E. 902(4), It Need Not Also Comply with the Provisions of Idaho Code § 9-312 to be Admissible Toyne was charged with DUI for conduct on June 21, 2007, elevated to a felony because he had previously been convicted of felony DUI within the past fifteen years. I.C. §§ 18-8004, 18-8005(7) (2006). At trial, the State offered documents to prove that Toyne had three prior felony DUI convictions in other states. Toyne objected, contending that the documents were inadmissible because they were not properly authenticated under the provisions of Idaho Code § 9-312. The district court overruled the objection, holding that the documents were properly certified and authenticated under the provisions of the Idaho Rules of Evidence and that compliance with the statute was therefore unnecessary. On appeal, Toyne claims error, asserting that compliance with the statute is a prerequisite to admissibility.
The statute on which Toyne relies, Section 9-312, authorizes authentication of judicial records in the following manner:
A judicial record of this state, or of the United States, may be proved by the production of the original, or by a copy thereof, certified by the clerk or other person having the legal custody thereof. That of another state or territory may be proved by the attestation of the clerk and the seal of the court annexed, if there be a clerk and seal, together with a certificate of the chief judge or presiding magistrate, that the attestation is in due form.
(emphasis added). Idaho Rule of Evidence 902(4), however, provides that the following records are self-authenticating:
A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2), or (3) of this rule or complying with any law of the United States or of this State, or rule prescribed by the Idaho Supreme Court.
(emphasis added). Recently, in State v. Howard, 150 Idaho 471, 248 P.3d 722 (2011), the Idaho Supreme Court considered whether compliance with the strictures of Section 9-312 is necessary for admission of records that comply with the certification standards of I.R.E. 902(4). The Court there rejected the same argument that is now presented by Toyne:
If I.C. § 9-312 was written to be the exclusive means of admitting and proving judicial records, I.C. § 9-312 would conflict with the I.R.E.'s authentication standards under 902(4) and, thus, I.C. § 9-312 would have no force or effect pursuant to I.R.E. 1102. However, I.C. § 9-312 may be read as merely providing an alternate way of admitting and proving judicial records, which would not conflict with the I.R.E. As stated ...