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State v. Dye

Court of Appeals of Idaho

August 28, 2013

STATE OF IDAHO, Plaintiff-Respondent,
v.
NORMAN LAKE DYE, JR., Defendant-Appellant.

UNPUBLISHED OPINION

2013 Unpublished Opinion No. 645

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

Order revoking probation and executing reduced sentence of a unified term of seven years, with one year determinate, for possession of a controlled substance, affirmed; order denying Idaho Criminal Rule 35 motion for reduction of sentence, affirmed.

Robyn Fyffe of Nevin, Benjamin, McKay & Bartlett LLP, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent.

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

PER CURIAM.

Norman Lake Dye, Jr. pled guilty to possession of a controlled substance, Idaho Code § 37-2732(c)(1). The district court imposed a unified sentence of seven years, with two years determinate, and retained jurisdiction. After a period of retained jurisdiction, the district court placed Dye on probation. Subsequently, Dye admitted to violating terms of his probation. The district court revoked the probation and executed a reduced sentence of a unified term of seven years, with one year determinate. Dye filed an Idaho Criminal Rule 35 motion for reduction of his sentence, which the district court denied. Dye appeals, contending the district court abused its discretion by revoking probation and by denying Dye's Rule 35 motion.

It is within the trial court's discretion to revoke probation if any of the terms and conditions of the probation have been violated. I.C. §§ 19-2603, 20-222; State v. Beckett, 122 Idaho 324, 325, 834 P.2d 326, 327 (Ct. App. 1992); State v. Adams, 115 Idaho 1053, 1054, 772 P.2d 260, 261 (Ct. App. 1989); State v. Hass, 114 Idaho 554, 558, 758 P.2d 713, 717 (Ct. App. 1988). In determining whether to revoke probation, a court must examine whether the probation is achieving the goal of rehabilitation and consistent with the protection of society. State v. Upton, 127 Idaho 274, 275, 899 P.2d 984, 985 (Ct. App. 1995); Beckett, 122 Idaho at 325, 834 P.2d at 327; Hass, 114 Idaho at 558, 758 P.2d at 717. The court may, after a probation violation has been established, order that the suspended sentence be executed or, in the alternative, the court is authorized under Idaho Criminal Rule 35 to reduce the sentence. Beckett, 122 Idaho at 325, 834 P.2d at 327; State v. Marks, 116 Idaho 976, 977, 783 P.2d 315, 316 (Ct. App. 1989). A decision to revoke probation will be disturbed on appeal only upon a showing that the trial court abused its discretion. Beckett, 122 Idaho at 325, 834 P.2d at 327. In reviewing the propriety of a probation revocation, the focus of the inquiry is the conduct underlying the trial court's decision to revoke probation. State v. Morgan, 153 Idaho 618, 621, 288 P.3d 835, 838 (Ct. App. 2012). Thus, this Court will consider the elements of the record before the trial court relevant to the revocation of probation issues that are properly made part of the record on appeal. Id. Applying the foregoing standards, and having reviewed the record in this case, we cannot say the district court abused its discretion in revoking probation. Therefore, the district court's order revoking probation is affirmed.

A motion for reduction of sentence under Idaho Criminal Rule 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). An appeal from the denial of a Rule 35 motion cannot be used as a vehicle to review the underlying sentence absent the presentation of new information. Id. Because no new or additional information in support of Dye's Rule 35 motion was presented, the district court did not abuse its discretion. Accordingly, the district court's order denying Dye's Rule 35 motion is affirmed.


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