2013 Unpublished Opinion No. 703
Appeal from the District Court of the Fifth Judicial District, State of Idaho, Minidoka County. Hon. Jonathan P. Brody, District Judge.
Judgment dismissing petition for post-conviction relief, affirmed.
Duaine Fredrick Earl, Rupert, pro se appellant.
Hon. Lawrence G. Wasden, Attorney General; Nicole L. Schafer, Deputy Attorney General, Boise, for respondent.
GUTIERREZ, Chief Judge.
Duaine Fredrick Earl appeals from the judgment dismissing his petition for post-conviction relief. Specifically, Earl asserts the district court erred by granting the State's motion for summary dismissal. For the reasons set forth below, we affirm.
I. FACTS AND PROCEDURE
The district court set forth the following facts and procedure in its memorandum decision granting the State's motion for summary dismissal of Earl's petition for post-conviction relief:
Duaine Fredrick Earl was sentenced on March 6, 2000 after pleading guilty to violating I.C. 18-6101(1), rape. The court sentenced Mr. Earl to a unified sentence of ten (10) years with (1) year determinate, but retained jurisdiction. Mr. Earl was granted supervised probation upon returning from his rider but later violated that probation.
A report of the probation violation was filed on or about May 7, 2002 and Mr. Earl later failed to appear to his evidentiary hearing regarding that violation. Mr. Earl was later apprehended and admitted to violating his probation. Mr. Earl then had his original sentence imposed on November 25, 2002 and he was granted credit for time served. The amount of time credited was left out of the original Order on Motion to Revoke Probation dated December 2, 2002, but based upon a stipulation by the parties in this action the time credited is 232 days.
Mr. Earl has filed an application for post-conviction relief and the State has moved for Summary Dismissal of the matter. Mr. Earl is asserting that he should be granted credit for time served on probation, and as such he should be released immediately as his full term release date under that calculation would have been February 24, 2010.
Following a hearing on the State's motion for summary dismissal, the district court granted the State's motion, addressing each of the four grounds and finding Earl alleged no genuine issue of material fact. The district court entered a ...