Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Deborah Ann Bail, District Judge.
The opinion of the court was delivered by: Gutierrez, Judge
2012 Unpublished Opinion No. 579
THIS IS AN UNPUBLISHED
OPINION AND SHALL NOT
BE CITED AS AUTHORITY
Order denying motion for credit for time served, affirmed; order denying Idaho Criminal Rule 35 motion for correction of sentence, affirmed.
Dennis Ray Smith, Jr. appeals from the district court's orders denying his motion for credit for time served and denying his Idaho Criminal Rule 35 motion for correction of his sentence. For the reasons set forth below, we affirm.
Smith pled guilty to forgery, Idaho Code § 18-3601. The district court withheld judgment and placed Smith on probation for a period of five years. Subsequently, Smith admitted to violating his probation by incurring an additional criminal charge. The district court revoked the withheld judgment; imposed a unified sentence of five years, with two years determinate; and reinstated Smith's probation. Following another report of probation violations, Smith again admitted to violating terms of his probation. The district court revoked Smith's probation and executed the underlying sentence, but retained jurisdiction. At the conclusion of the period of retained jurisdiction, the district court suspended the underlying sentence and returned Smith to probation. Several months later, Smith was once again found to have violated several terms of his probation. The district court consequently revoked probation and executed the underlying sentence. The district court credited Smith with 583 days against the sentence for the time he spent incarcerated and in the retained jurisdiction program. Smith filed a motion requesting additional credit for time served--specifically, thirty-three days served as discretionary jail time at the discretion of his probation officer as a condition of his probation and seventy-two months served on probation. The district court denied the motion by writing "denied" on the face of the motion. Smith then filed a Rule 35 motion for correction of his sentence, alleging an illegal sentence and requesting credit for the time he served on probation and as discretionary jail time. The district court denied the Rule 35 motion by writing "Denied. Untimely" on the face of the motion. Smith filed a timely notice of appeal from the denial of his motion for credit for time served and the denial of his Rule 35 motion.
Smith's main argument is that he should receive credit for time served while on probation because he was under the custody of the Department of Correction and, thus, not "at large." Additionally, he asserts that if he is not credited for time on probation, the total time he would be subject to the Department of Correction's authority will exceed the imposed unified sentence of five years, making the sentence illegal. Finally, Smith contends that the district court improperly denied his Rule 35 motion as "untimely."*fn1
A. Credit for Time Served While on Probation
This Court exercises free review over the application and construction of statutes. State v. Reyes, 139 Idaho 502, 505, 80 P.3d 1103, 1106 (Ct. App. 2003). Where the language of a statute is plain and unambiguous, this Court must give effect to the statute as written, without engaging in statutory construction. State v. Burnight, 132 Idaho 654, 659, 978 P.2d 214, 219 (1999); State v. Escobar, 134 Idaho 387, 389, 3 P.3d 65, 67 (Ct. App. 2000). The language of the statute is to be given its plain, obvious, and rational meaning. Burnight, 132 Idaho at 659, 978 P.2d at 219. If the language is clear and unambiguous, there is no occasion for the court to resort to legislative history, or rules of statutory interpretation. Escobar, 134 Idaho at 389, 3 P.3d at 67. When this Court must engage in statutory construction because an ambiguity exists, it has the duty to ascertain the legislative intent and give effect to that intent. State v. Beard, 135 Idaho 641, 646, 22 P.3d 116, 121 (Ct. App. 2001). To ascertain such intent, not only must the literal words of the statute be examined, but also the context of those words, the public policy behind the statute, and its legislative history. Id. It is incumbent upon a court to give an ambiguous statute an interpretation that will not render it a nullity. Id. Constructions of an ambiguous statute that would lead to an absurd result are disfavored. State v. Doe, 140 Idaho 271, 275, 92 P.3d 521, 525 (2004).
Smith's arguments focus on Idaho Code § 18-309, which provides:
In computing the term of imprisonment, the person against whom the judgment was entered shall receive credit in the judgment for any period of incarceration prior to entry of judgment, if such incarceration was for the offense or an included offense for which the judgment was entered. The remainder of the term commences upon the pronouncement of sentence and if thereafter, during such term, the defendant by any legal means is temporarily released from such ...