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State v. Tapia-Lopez

Court of Appeals of Idaho

August 1, 2013

STATE OF IDAHO, Plaintiff-Respondent,
v.
JOSE TAPIA-LOPEZ, Defendant-Appellant.

UNPUBLISHED OPINION

2013 Unpublished Opinion No. 609

Appeal from the District Court of the Fifth Judicial District, State of Idaho, Minidoka County. Hon. Michael R. Crabtree, District Judge.

Order denying Idaho Criminal Rule 35 motion for reduction of sentence.

Sara B. Thomas, State Appellate Public Defender; Shawn F. Wilkerson, Deputy Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy Attorney General, Boise, for respondent.

Before GUTIERREZ, Chief Judge; LANSING, Judge; and MELANSON, Judge.

PER CURIAM.

Jose Tapia-Lopez pled guilty to delivery of a controlled substance, Idaho Code § 37-2732(a)(1)(A). The district court sentenced Tapia-Lopez to a unified term of twelve years, with three years determinate, and retained jurisdiction. After Tapia-Lopez completed a period of retained jurisdiction, the district court suspended Tapia-Lopez's sentence and placed him on probation. Subsequently, Tapia-Lopez was found to have violated terms of his probation. The district court revoked Tapia-Lopez's probation and executed his underlying sentence. Tapia-Lopez filed an Idaho Criminal Rule 35 motion for reduction of his sentence, which the district court denied. Tapia-Lopez appealed.

After filing this appeal, and before assignment to this Court, Tapia-Lopez filed a motion to augment the record with additional transcripts. The Idaho Supreme Court entered an order denying Tapia-Lopez's motion. On appeal, Tapia-Lopez argues the Idaho Supreme Court denied him due process, equal protection, and effective assistance of counsel when it denied his motion to augment the record. He also contends the district court abused its discretion by denying his Rule 35 motion.

A. Denial of Motion to Augment the Record

Tapia-Lopez asks this Court to hold that the Idaho Supreme Court deprived him of due process, equal protection, and effective assistance of counsel when it denied his motion to augment the record. We do not, however, have the authority to review and, in effect, reverse an Idaho Supreme Court decision on a motion made prior to assignment of the case to this Court on the ground that the Supreme Court decision was contrary to the state or federal constitutions or other law. See State v. Morgan, 153 Idaho 618, 620, 288 P.3d 835, 837 (Ct. App. 2012). Such an undertaking would be tantamount to the Court of Appeals entertaining an appeal from an Idaho Supreme Court decision and is plainly beyond the purview of this Court. Id. If a motion is renewed by the movant and new information or a new or expanded basis for the motion is presented to this Court that was not presented to the Supreme Court, we deem it within the authority of this Court to evaluate and rule on the renewed motion in the exercise of our responsibility to address all aspects of an appeal from the time of assignment to this Court. Id. Such may occur if the appellant's or respondent's briefs have refined, clarified, or expanded issues on appeal in such a way as to demonstrate the need for additional records or transcripts, or where new evidence is presented to support a renewed motion. Id.

Tapia-Lopez has not filed with this Court a renewed motion to augment the record or presented to this Court in his briefing any significant new facts or a new justification for augmentation beyond that already advanced in his motion to the Supreme Court. In essence, Tapia-Lopez asks us to determine that the Idaho Supreme Court violated constitutional law by denying his motion.

Although in Morgan we held a challenge to an Idaho Supreme Court denial of a motion to augment the record is beyond the scope of our authority to review without a renewed motion, Tapia-Lopez asserts that this Court indeed has the authority to address the due process and equal protection issues on appeal. He claims that such authority is implicit in the grant of authority found in Idaho Appellate Rule 108. Further, Tapia-Lopez argues that a renewed motion to ...


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