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State v. Deborah Ann Tevebaugh

IN THE COURT OF APPEALS OF THE STATE OF IDAHO


January 29, 2013

STATE OF IDAHO, PLAINTIFF-RESPONDENT,
v.
DEBORAH ANN TEVEBAUGH, DEFENDANT-APPELLANT.

Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. Benjamin R. Simpson, District Judge.

Per curiam.

2013 Unpublished Opinion No. 344

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Order relinquishing jurisdiction and executing underlying unified sentence of ten years, with a minimum period of confinement of five years, for driving under the influence of alcohol, felony, affirmed; order denying I.C.R. 35 motion for reduction of sentence, affirmed.

Before LANSING, Judge; GRATTON, Judge; and MELANSON, Judge

Deborah Ann Tevebaugh was convicted of felony driving under the influence, Idaho Code § 18-8004(1)(a). The district court imposed a unified ten-year sentence with five years determinate, and the court retained jurisdiction. Following the period of retained jurisdiction, the district court relinquished jurisdiction and executed the underlying sentence. Tevebaugh filed an Idaho Criminal Rule 35 motion, which the district court denied. Tevebaugh appeals asserting that the district court abused its discretion by relinquishing jurisdiction, failing to reduce her underlying sentence upon relinquishing jurisdiction, and by denying her 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.

Sentencing is a matter for the trial court's discretion. Both our standard of review and the factors to be considered in evaluating the reasonableness of the sentence are well established. See State v. Hernandez, 121 Idaho 114, 117-18, 822 P.2d 1011, 1014-15 (Ct. App. 1991); State v. Lopez, 106 Idaho 447, 449-51, 680 P.2d 869, 871-73 (Ct. App. 1984); State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct. App. 1982). When reviewing the length of a sentence, we consider the defendant's entire sentence. State v. Oliver, 144 Idaho 722, 726, 170 P.3d 387, 391 (2007). Applying these standards, and having reviewed the record in this case, we cannot say that the district court abused its discretion.

Next, we review whether the district court erred in denying Tevebaugh's Rule 35 motion. A motion for reduction of sentence under I.C.R. 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). In conducting our review of the grant or denial of a Rule 35 motion, we consider the entire record and apply the same criteria used for determining the reasonableness of the original sentence. State v. Forde, 113 Idaho 21, 22, 740 P.2d 63, 64 (Ct. App. 1987); Lopez, 106 Idaho at 449-51, 680 P.2d at 871-73. Upon review of the record, we conclude no abuse of discretion has been shown.

Applying the foregoing standards, and having reviewed the record in this case, we cannot say that the district court abused its discretion either by relinquishing jurisdiction or by ordering execution of Tevebaugh's underlying sentence without modification. Tevebaugh has failed to establish an abuse of discretion by the district court in denying her I.C.R. 35 motion. Therefore, the district court's orders relinquishing jurisdiction and directing execution of Tevebaugh's underlying sentence and denying her I.C.R. 35 motion are affirmed.

20130129

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