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: Gutierrez, Judge
2012 Unpublished Opinion No. 711
) THIS IS AN UNPUBLISHED ) OPINION AND SHALL NOT ) BE CITED AS AUTHORITY
Order revoking probation and reducing sentence, reversed and case remanded.
Thomas Edward Boyce appeals from the district court's order revoking his probation and imposing a reduced sentence for his conviction for grand theft. He also argues the Idaho Supreme Court erred in denying his motion to augment the record on appeal. For the reasons set forth below, we reverse the district court's order revoking probation and reducing sentence.
In October 2002, while on probation for grand theft, Boyce stole $2700 from his employer to pay off a gambling debt. Boyce was charged with grand theft and pled guilty. The district court imposed a unified sentence of ten years, with three years determinate, and retained jurisdiction. At the conclusion of the period of retained jurisdiction, in June 2003, the district court suspended Boyce's sentence and placed him on probation for ten years. His supervision was eventually transferred to Nevada pursuant to an interstate compact.
On June 7, 2010, Boyce's employer filed a police report, alleging $1000 had been stolen from the company.*fn1 Boyce's probation officer and other law enforcement officials attempted to locate Boyce, but were unsuccessful for several weeks.*fn2 When questioned, Boyce's family members told his probation officer they had not seen Boyce since before June 7, 2010. On July 1, 2010, the State of Idaho filed a motion for a probation violation, alleging Boyce changed his residence without obtaining written permission from his probation officer, absconded from supervision, and stole $1000 from his employer. Officials in Nevada declined to pursue theft charges due to a lack of evidence, and Idaho officials, likewise, dismissed the theft allegation in regard to revocation of Boyce's probation. At the probation violation hearing, Boyce insisted he did not abscond, but went camping for approximately three and a half weeks. He testified that at his regularly scheduled monthly meeting with his probation officer, on the first Wednesday in June, he informed his probation officer of his general plan to go camping the "next week." As to the allegation he moved without prior written permission, Boyce stated his mother and a friend moved his belongings without Boyce's knowledge while Boyce was camping. Boyce stated he informed his probation officer of the move the day after he returned from camping during their regularly scheduled monthly meeting in July. The district court found Boyce violated the terms of his probation by changing his residence prior to receiving written permission and absconding from supervision, but noted they were largely "technical" violations. The court delayed making a decision as to the revocation of probation, giving Boyce, who was incarcerated at the time, several months to find a structured living situation and employment. After reconvening several months later, the district court revoked Boyce's probation. The court exercised its Idaho Criminal Rule 35 authority and reduced Boyce's sentence to a unified term of eight years, with three years determinate, and gave Boyce credit for 384 days of incarceration. Boyce appealed the revocation of his probation to the Idaho Supreme Court and filed a "Motion to Augment and to Suspend the Briefing Schedule and Statement in Support Thereof," requesting augmentation of the record with the transcript of Boyce's change of plea hearing held in November 2002, the transcript of his sentencing hearing held in December 2002, and the transcript of a jurisdictional review hearing held in June 2003.*fn3 The Supreme Court denied the motion. Boyce now appeals from the revocation of his probation.*fn4
Although conceding he violated the terms of his probation, Boyce argues the district court abused its discretion when it revoked his probation. Idaho Code § 20-222 authorizes the revocation of probation at any time if the probationer violates any condition of the probation. Hence, once a violation has been found, the district court must determine whether it is of such seriousness as to warrant revoking probation. State v. Chavez, 134 Idaho 308, 312, 1 P.3d 809, 813 (Ct. App. 2000). However, probation may not be revoked arbitrarily. State v. Adams, 115 Idaho 1053, 1055, 772 P.2d 260, 262 (Ct. App. 1989). In making this discretionary decision, the trial court must examine whether probation is achieving the goal of rehabilitation and whether continuation of the probation is consistent with the protection of society. State v. Leach, 135 Idaho 525, 529, 20 P.3d 709, 713 (Ct. App. 2001); Chavez, 134 Idaho at 312, 1 P.3d at 813; State v. Jones, 123 Idaho 315, 318, 847 P.2d 1176, 1179 (Ct. App. 1993); State v. Hass, 114 Idaho 554, 558, 758 P.2d 713, 717 (Ct. App. 1988). If a knowing and intentional probation violation has been proved, a district court's decision to revoke probation will be reviewed for an abuse of discretion.*fn5 I.C. § 20-222; Leach, 135 Idaho at 529, 20 P.3d at 713; State v. Corder, 115 Idaho 1137, 1138, 772 P.2d 1231, 1232 (Ct. App. 1989). In determining ...