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State v. Kesling

Court of Appeals of Idaho

December 23, 2013

STATE of Idaho, Plaintiff-Respondent,
v.
Shawn Michael KESLING, Defendant-Appellant.

Page 862

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.

LANSING, Judge.

Shawn Michael Kesling appeals rulings made in three cases that have been consolidated on appeal. In one case, he argues that

Page 863

the trial court lacked jurisdiction to revoke his probation because his probationary term exceeded the maximum authorized by statute for that offense. In all three cases, he argues that he is owed additional credit for time served because an Idaho detainer caused him to be held by Florida authorities after the sentences he was serving there had been completed.

I.

BACKGROUND

On December 1, 2003, the district court entered judgments of conviction against Kesling in three Ada County cases. Kesling pleaded guilty to forgery, I.C. § 18-3601, in Ada County Case No. H0300557; grand theft by deception, I.C. §§ 18-2403(2)(a), 18-2407(1)(b), in Case No. H0300589; and felony issuing a check without funds, I.C. § 18-3106(a), in Case No. H0300379.[1] In these cases, the district court imposed concurrent unified sentences of nine years in prison with two years fixed, but suspended the sentences and placed Kesling on probation for nine years.

Kesling's probation supervision was transferred to Florida pursuant to an interstate compact. While in Florida, Kesling committed five new felonies. He eventually pleaded nolo contendere to the Florida charges, and on March 4, 2008, was sentenced to forty-five months of imprisonment. Because the Florida charges violated Kesling's probation in the Idaho cases, bench warrants were issued by the Idaho district court. Kesling was not immediately served with these warrants. Instead, the record shows that the Florida authorities received two sets of communication from the Idaho authorities, one on March 4, 2008, and another three years later, on March 2, 2011. The text of these communications is not in the record. The only information Kesling has presented regarding them is in notations within an inmate record produced by the Florida Department of Corrections.

On March 22, 2011, Florida released Kesling to Idaho law enforcement authorities. He was transported to Idaho, arriving on March 29, 2011, and was then served with the bench warrants. Kesling admitted that he violated his probation, but before disposition, requested credit on his Idaho sentences for time served in Florida. His motion sought credit for incarceration beginning on March 4, 2008, the date on which the first communication from Idaho authorities to Florida authorities was made. That request was denied. The district court revoked probation and ordered execution of the original nine-year sentences in each case, giving Kesling credit for the seven days after custody was transferred to Idaho but before the bench warrants were served. Thereafter, Kesling filed a pro se motion pursuant to Idaho Criminal Rule 35 requesting correction of an illegal sentence. He pointed out that his sentence in Ada County Case No. H0300379 for issuing a check without funds exceeded the maximum sentence authorized for the offense. The trial court granted this motion and amended the sentence to a unified sentence of three years with two years fixed.

On appeal, Kesling contends that he is entitled to additional credit for his incarceration in Florida. He also argues for the first time on appeal that the court lacked jurisdiction to revoke his probation in Ada County Case No. H0300379 because the maximum lawful term of probation for the offense had expired before probation revocation proceedings were initiated.

II.

ANALYSIS


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