2013 Unpublished Opinion No. 635
Appeal from the District Court of the Fifth Judicial District, State of Idaho, Minidoka County. Hon. Michael R. Crabtree, District Judge.
District court order denying Rule 35 and alternative Rule 60(b) motion,
Nevin, Benjamin, McKay & Bartlett, LLP; Robyn A. Fyffe, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy Attorney General, Boise, for respondent.
WALTERS, JUDGE PRO TEM
David Leon Johnson appeals from the district court's denial of his Idaho Criminal Rule 35 motion to correct an illegal sentence and his alternative Idaho Rule of Civil Procedure 60(b) motion for relief from judgment regarding costs of transcript preparation for his appeal. We affirm.
In 2006, Johnson, represented by private counsel, was convicted of two counts of lewd conduct with a minor child under sixteen, Idaho Code § 18-1508. After Johnson was sentenced, he filed an application for public defender representation on appeal, contending he was indigent. At a hearing, the prosecutor questioned whether Johnson was truly indigent as the presentence investigation report indicated that Johnson had earned $75, 000 the year before through his business. The district court also expressed concern over whether Johnson qualified as indigent, but appointed the county public defender so that an appeal could be timely filed preserving Johnson's rights. The district court also expressly allowed the prosecutor to further investigate Johnson's assets and to bring the matter to the court's attention if it was contended that Johnson was not indigent.
On November 3, 2006, the prosecutor filed a motion for an evidentiary hearing on the matter. After two hearings, the district court determined that Johnson had sufficient assets to pay for his own costs and representation, but that most of those assets were non-liquid and would take some time to turn into cash. The district court ordered the State Appellate Public Defender's office to represent Johnson on appeal, subject to any later request for reimbursement. The court further reasoned that because trial court reporters require transcript preparation fees to be paid up front and delay would prejudice Johnson's right to a timely appeal, it would order that Johnson immediately pay $500 toward those estimated fees and that Minidoka County would pay for the remaining $4, 132.50, subject to reimbursement by Johnson. On November 21, 2006, the court entered a civil judgment in favor of the County and against Johnson for this latter amount. Johnson did not appeal from this civil judgment, nor did he ever pay the judgment amount.
Johnson eventually prevailed in his criminal appeal, and the two convictions were vacated. State v. Johnson, 148 Idaho 664, 227 P.3d 918 (2010). At a new trial in June 2011, represented by private counsel, Johnson was re-convicted of the two offenses. He did not appeal from the judgment of conviction.
Following a post-trial hearing and issuance of a court order on the prosecutor's motion concerning the exact same matter, on January 31, 2012, Johnson filed a "motion to correct an illegal judgment" under Idaho Criminal Rule 35, contending that the district court's November 21, 2006, civil judgment was "voided" by his successful appeal. In a memorandum in support filed three months later, he clarified that his motion was being pursued under Idaho Rule of Civil Procedure 60(b)(4), which allows relief from a "void" civil judgment, and under I.R.C.P. 60(b)(5), which allows relief from a civil judgment if, in part, "a prior judgment upon which it is based has been reversed or otherwise vacated." He also contended that the civil judgment was a "restitution order" dependent upon a valid criminal conviction, and that because his convictions had been reversed on appeal, the civil judgment should likewise be vacated. The district court denied the motion, holding that the motion was untimely, and that even ...