2013 Unpublished Opinion No. 529
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Michael E. Wetherell, District Judge.
Nevin, Benjamin, McKay & Bartlett, LLP; Dennis A. Benjamin, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy Attorney General, Boise, for respondent.
Kirk Loftis appeals the district court's denial of his motion to correct an illegal sentence under Idaho Criminal Rule 35. He contends that his sentence is illegal because the district court lacked subject matter jurisdiction over the felony charge for which Loftis was convicted and sentenced.
In late 2003, Kirk Loftis and Kim Richards were living together. Although they had signed a lease together, the stress of unemployment had strained the relationship, and in September Richards asked Loftis to move out. Over the next few days the two talked, presumably in an attempt to reconcile, but on October 1, the discussion deteriorated into a violent confrontation. Richards later testified that Loftis hit her, wrestled with her, pulled her hair, choked her, pushed her, and the like. Richards' daughter was present for the struggle. A neighbor who witnessed part of the fight called the police. The State filed an information charging Loftis as follows:
DOMESTIC VIOLENCE IN THE PRESENCE OF CHILDREN, FELONY, I.C. § 18-903, 918(7)(b) which crimes was/were committed as follows:
That Defendant, KIRK A. LOFTIS, on or about the 1st day of October, 2003, in the County of Ada, State of Idaho, did actually, intentionally and unlawfully commit a traumatic injury upon the person of Kim Richards, to-wit: by punching the victim in the face and head, pulling her by the hair and strangling her by the neck, while in the presence of a child, to-wit: [A.R., ] four (4) years old, and where Kim Richards and the Defendant are household members.
After a trial, Loftis was found guilty of felony domestic violence in the presence of children. In 2011, Loftis filed a motion to vacate his sentence and/or conviction on the ground that the court lacked subject matter jurisdiction. According to Loftis, the information was sufficient to allege only misdemeanor domestic violence, and the district court therefore lacked jurisdiction to convict and sentence him for a felony. The district court denied the motion.
On appeal, Loftis again asserts that his felony conviction and sentence are illegal and should be vacated because the district court lacked jurisdiction. He argues that he should be sentenced on remand for misdemeanor battery because that is the only offense for which ...