Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Kathryn A. Sticklen, District Judge; Hon. Theresa Gardunia, Magistrate.
The opinion of the court was delivered by: Lansing, Judge
2012 Unpublished Opinion No. 717
THIS IS AN UNPUBLISHED
OPINION AND SHALL NOT
District court order dismissing intermediate appeal, vacated, and case remanded for amended order affirming magistrate court's order.
Pedro Pete Navejar appeals from the district court's order dismissing Navejar's intermediate appeal from a magistrate court's order denying his motion for modification of his sentence.
In 2009, Navejar was charged with misdemeanor driving under the influence of alcohol, Idaho Code § 18-8004(c). He pleaded guilty on January 27, 2010, and was sentenced on the same day. A judgment was filed on February 3. As part of the sentence, the magistrate court ordered Navejar to serve 163 days in the Ada County Jail, consecutive to a prior felony sentence. For reasons that are not clear from the record, the magistrate court conducted a "file memo review" hearing on March 25, 2010, in which certain terms may have been added to Navejar's sentence and/or conditions of probation. Although this hearing appears to have been somewhat unconventional, neither the hearing nor the resulting order is of significance to the present appeal.
Beginning in February 2010, Navejar, acting pro se, began writing a series of informal, handwritten requests to the magistrate court which are best characterized as motions for modification of his sentence under Idaho Criminal Rule 35. They requested principally that his misdemeanor DUI sentence be revised to run concurrently with the felony sentence that he was then serving. These requests were either denied or not acted upon by the magistrate court. The last of these requests was filed on May 10, 2011, and denied on May 11, 2011.
Navejar filed a pro se notice of appeal to the district court on May 31, 2011. The district court appointed counsel to represent Navejar and requested briefing on the question of the timeliness of the appeal. The district court ultimately dismissed the appeal as untimely, explaining:
Rule 35 of the Idaho Criminal Rules addresses motions for correction or reduction in sentence. It provides that an illegal sentence may be corrected at any time but that a motion for reduction in sentence must be filed within 120 days of the entry of the judgment of conviction. An order denying a motion for reduction in sentence is appealable under Rule 11(e)(6) of the Idaho Appellate Rules and must be filed within 42 days of the entry of the order under Rule 14. In this case the May 27 2011 [sic] motion was more than 120 days from the entry of judgment. Since it was untimely, the appeal is also untimely.
Since timely filing of a notice of appeal and a motion for reduction of sentence is jurisdictional, this court is without authority to hear this appeal. Therefore, the appeal is dismissed.
Navejar now further appeals to this Court, arguing that the district court erred in concluding that the appeal from the ...