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State v. Larry Harold Gilman

IN THE COURT OF APPEALS OF THE STATE OF IDAHO


October 1, 2012

STATE OF IDAHO, PLAINTIFF-RESPONDENT,
v.
LARRY HAROLD GILMAN, JR., DEFENDANT-APPELLANT.

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Timothy Hansen, District Judge.

Per curiam.

2012 Unpublished Opinion No. 651

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Order relinquishing jurisdiction, affirmed; order denying Idaho Criminal Rule 35 motion for reduction of sentence, affirmed.

Before GRATTON, Chief Judge; GUTIERREZ, Judge; and MELANSON, Judge

Larry Harold Gilman pled guilty to felony possession of a controlled substance. Idaho Code § 37-2732(c). The district court sentenced Gilman to a unified term of seven years, with two years determinate, and retained jurisdiction. At the conclusion of the period of retained jurisdiction, the district court relinquished jurisdiction. During the jurisdictional review hearing, Gilman orally made an Idaho Criminal Rule 35 motion for reduction of his sentence, which the district court denied. Gilman appeals, contending the district court abused its discretion in relinquishing jurisdiction and in denying his Rule 35 motion.

We note that the decision to place a defendant on probation or whether, instead, to relinquish jurisdiction over the defendant is a matter within the sound discretion of the district court and will not be overturned on appeal absent an abuse of that discretion. State v. Hood, 102 Idaho 711, 712, 639 P.2d 9, 10 (1981); State v. Lee, 117 Idaho 203, 205-06, 786 P.2d 594, 596-97 (Ct. App. 1990). The record in this case shows that the district court properly considered the information before it and determined that probation was not appropriate. We hold that Gilman has failed to show that the district court abused its discretion in relinquishing jurisdiction.

A motion for reduction of sentence under Idaho Criminal Rule 35 is essentially a plea for leniency, addressed to the sound discretion of the court. State v. Knighton, 143 Idaho 318, 319, 144 P.3d 23, 24 (2006); State v. Allbee, 115 Idaho 845, 846, 771 P.2d 66, 67 (Ct. App. 1989). In presenting a Rule 35 motion, the defendant must show that the sentence is excessive in light of new or additional information subsequently provided to the district court in support of the motion. State v. Huffman, 144 Idaho 201, 203, 159 P.3d 838, 840 (2007). Upon review of the record, including the new information presented with Gilman's Rule 35 motion, we conclude no abuse of discretion has been shown.

Therefore, the order of the district court relinquishing jurisdiction and the district court's order denying Gilman's Rule 35 motion are affirmed.

20121001

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