Appeal from the District Court of the Seventh Judicial District, State of Idaho, Bingham County. Hon. Darren B. Simpson, District Judge.
2012 Unpublished Opinion No. 686
THIS IS AN UNPUBLISHED
OPINION AND SHALL NOT
BE CITED AS AUTHORITY
Order revoking withheld judgment and imposing unified sentence of five years, with two years determinate, affirmed.
Before LANSING, Judge; GUTIERREZ, Judge; and MELANSON, Judge
Dusty Bruce Williams was charged with principal to delivery of a controlled substance, Count I, and delivery of a controlled substance, Count II. Pursuant to a plea agreement, Williams pled guilty to Count II, delivery of a controlled substance, Idaho Code § 37-2732(a)(1)(B), and the State agreed to dismiss Count I. At the change of plea hearing, the record reflects there was some initial confusion as to which count Williams was pleading guilty to. After clarifying Williams was pleading guilty to Count II, the district court took William's guilty plea to delivery of a controlled substance.
At the sentencing hearing, the district court correctly recounted that Williams "entered a plea of guilty to the charge of Count II of delivery of a controlled substance, marijuana" and orally announced its decision to enter a withheld judgment and place Williams on probation. Contrary to the record, the subsequent written order withholding judgment erroneously stated Williams pled guilty to Count I and dismissed Count II. Neither party moved the court to correct the error in the withheld judgment.
Subsequently, Williams admitted to violating several terms of the probation. As a result, the district court revoked the withheld judgment; imposed a unified sentence of five years, with two years determinate; and retained jurisdiction. At the beginning of the hearing on probation violation, the district court orally recounted the correct charge: "In this matter, the Court withheld judgment based upon your plea of guilty to delivery of a controlled substance, marijuana . . . ." However, just before announcing disposition, the district court stated, "Mr. Williams, based on your admissions, the Court does find that you have violated the terms and conditions of your probation. Therefore, your withheld judgment must be revoked and a conviction entered as to the charge outlined in Count I of principal to delivery of marijuana." The court then proceeded to announce the disposition:
Mr. Williams, based on your admissions, the Court, as indicated, does find that it's appropriate to revoke your withheld judgment. Court is entering a conviction on Count 1 of principal to delivery of marijuana.
You're hereby sentenced to the Idaho State Department of Corrections for a fixed and determinate period of two years and an indeterminate period of three years, in other words, not less than two [or] more than five.
The written order revoking the withheld judgment erroneously stated Williams was being sentenced as to Count I, principal to delivery of a controlled substance.
Williams now appeals from the order revoking withheld judgment, contending the district court acted outside the bounds of its discretion by imposing an illegal sentence by sentencing Williams on the charge of principal to delivery of a controlled substance, Count I. The State counters that William's argument is without merit because Williams did not file a timely appeal from the order withholding judgment. The State further argues Williams has failed to demonstrate fundamental error because the alleged error was clerical in nature and may be corrected by the district court pursuant to Idaho Criminal Rule 36.
Williams never objected to the erroneous language in the written order withholding judgment or the district court's incorrect statements at the subsequent hearing on probation violation regarding which charge Williams pled guilty to. Without an objection in proceedings below, the error Williams complains of is subject to the fundamental error standard. See State v. Perry, 150 Idaho 209, 245 P.3d 961 (2010). However, we ...