2013 Unpublished Opinion No. 614
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Michael E. Wetherell, District Judge.
Order denying motion for credit for time served, affirmed.
Sara B. Thomas, State Appellate Public Defender; Sally J. Cooley, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy Attorney General, Boise, for respondent.
Kirkley Allen Evans appeals from the district court's denial of his motion for credit for time served. He argues he should have been credited with the five days he was held at the Idaho Department of Correction (IDOC) facility between the time he was sentenced by the district court and when he was transported to California to serve a federal sentence.
FACTUAL AND PROCEDURAL BACKGROUND
Evans entered an Alford plea to the charge of aggravated assault upon a law enforcement officer, Idaho Code §§ 18-915, 18-905, 18-901, and was sentenced to a unified term of ten years with six years determinate. After this Court affirmed his judgment of conviction and sentence, Evans filed a motion for credit for time served pursuant to I.C. § 18-309, requesting "credit for all local, county and state time served." Along with his motion, he filed an affidavit and several exhibits. In his affidavit he stated that after he was sentenced on August 21, 2008, he served five days in the custody of the IDOC, after which he was transferred to California to serve a federal sentence. Evans alleged he was not given notice when he was transferred from the IDOC to federal prison authorities, and therefore his due process rights were violated. He asserted that his state sentence was "never halted" and that he served 790 days of his state conviction while he was in federal prison, thereby suggesting that his state sentence should be credited with all of the time he served in federal prison, although his arguments were less than clear. The district court denied Evans' motion stating that his due process argument was frivolous since he was given notice in the judgment of conviction which stated that his state and federal sentences would run consecutively, and there is no law requiring any additional notice to the defendant. Evans appeals.
As an initial matter, we note the particular issue that Evans argues on appeal is that the district court erred in denying him credit for five days while he was in the custody of the IDOC, before being transferred to serve his federal sentence. This precise issue was not addressed by the district court because Evans did not ask for credit for any specific dates in his original motion, instead contending that he was entitled to credit for all of the time served on the federal sentence, 790 days, against his state sentence. The district court, therefore, did not have an adequate opportunity to address this issue in its order. The State argues that this issue was not preserved for appeal. "Appellate court review is limited to the evidence, theories and ...