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State v. Olivas

Supreme Court of Idaho

May 4, 2015

STATE OF IDAHO, Plaintiff-Appellant,
v.
MOSES OLIVAS, JR., Defendant-Respondent

2015 Opinion No. 44

Page 1190

Appeal from the District Court of the Third Judicial District of the State of Idaho,Canyon County. Hon. Thomas J. Ryan, District Judge.

The judgment of conviction and sentence is affirmed.

Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, attorney for appellant. Russell J. Spencer argued.

Sara B. Thomas, Idaho State Appellate Public Defender, Boise, attorney for respondent. Eric Fredericksen argued.

KIDWELL, J. pro tem. Chief Justice BURDICK and Justice J. JONES CONCUR. HORTON, J., dissenting. Justice EISMANN, concurring in Justice Horton's dissent.

OPINION

Page 1191

KIDWELL, J. pro tem

I. Nature of the Case

Moses Olivas, Jr., was convicted of failing to register as a sex offender. Pursuant to Idaho Code section 18-8311(1), the district court sentenced Olivas to a term of imprisonment of five years. The district court also revoked Olivas's probation on a prior conviction, executed the underlying sentence from that conviction, and retained jurisdiction. The district court ordered the underlying sentence and the five-year sentence for failing to register as a sex offender to run consecutively. Following the period of retained jurisdiction on the prior conviction, the district court suspended Olivas's underlying sentence and reinstated probation. The State appealed the district court's order suspending Olivas's sentence on the prior conviction. The Court of Appeals affirmed the district court's decision. The State petitioned this Court for review. This Court granted the State's petition. We affirm.

II. Factual and Procedural Background

On February 6, 2009, Olivas was convicted of the crime of sexual abuse of a child under the age of sixteen in violation of Idaho Code section 18-1506. The district court sentenced Olivas to a total unified term of confinement of ten years with five years fixed and retained jurisdiction for 180 days pursuant to Idaho Code section 19-2601(4). The district court ordered Olivas to register as a sex offender pursuant to the Sexual Offender Registration and Community Right-to-Know Act (SORA), codified at Idaho Code section 18-8301 to 18-8331. Following the period of retained jurisdiction, the district court suspended Olivas's sentence and placed him on probation for seven years. The district court again ordered Olivas to register as a sex offender.

On July 20, 2011, the State filed a petition alleging that Olivas violated the terms of his probation, and on August 11, 2011, the State filed a supplemental petition alleging an additional probation violation. On August 18, 2011, the State filed an information charging Olivas with failure to register as a sex offender in violation of SORA. On September 13, 2011, Olivas admitted to the probation violation. On October 31, 2011, Olivas pled guilty to failing to register as a sex offender.

On December 12, 2011, the district court held a consolidated hearing for the probation violation and the failure to register offense. For the probation violation, the district court revoked the order of probation and executed the original sentence for sexual abuse of a child. For the failure to register offense, the district court sentenced Olivas to a unified term of confinement of five years with zero years fixed to run consecutive to the sentence for sexual abuse of a child. The district court retained jurisdiction over Olivas for both convictions for 365 days pursuant to Idaho Code section 19-2601(4).

Page 1192

On January 20, 2012, the State moved under Idaho Criminal Rule 35 to correct an illegal sentence. The State argued that the district court could not retain jurisdiction over Olivas for either conviction because Idaho Code section 18-8311(1) of SORA required the district court to revoke probation and order Olivas to serve his original sentence for sexual abuse of a child consecutive to his new sentence for the failure to register offense. The district court granted the State's motion in part, concluding that it could not retain jurisdiction over Olivas for the failure to register conviction, but could retain jurisdiction for the sexual abuse of a child conviction. The district court then entered an amended judgment and commitment for the failure to register offense sentencing Olivas to a unified term of confinement of five years with zero years fixed to run consecutive to the sentence for sexual abuse of a child without retaining jurisdiction. Over the State's objection, the district court suspended Olivas's sentence for sexual abuse of a child after the period of retained jurisdiction and placed him on probation for seven years.

The State appealed and argued that the district court violated Idaho Code section 18-8311(1) by suspending Olivas's sentence for sexual abuse of a child and reinstating probation. The Court of Appeals was assigned to the case, and the Court of Appeals affirmed the district court's judgment of conviction and sentence. The State filed a petition for review, contending that the Court of Appeals incorrectly determined that Article V, Section 13 of the Idaho Constitution did not apply to Idaho Code section 18-8311(1). The Court granted the State's petition.

III. Issue on Appeal

Whether Idaho Code section 18-8311(1) prohibits the sentencing court from suspending the offender's original sentence, retaining jurisdiction, and reinstating probation pursuant to the constitutional limitation of Article V, Section 13 of the Idaho Constitution.

IV. Standard of Review

On a petition for review from the Court of Appeals, the Court " gives serious consideration to the Court of Appeals' views, but will review the trial court's decision directly" and " acts as if the appeal was directly from the trial court's decision." State v. Pepcorn, 152 Idaho 678, 686, 273 P.3d 1271, 1279 (2012). " Both constitutional questions and questions of statutory interpretation are questions of law over which this Court exercises free review." Stuart v. State, 149 Idaho 35, 40, 232 P.3d 813, 818 (2010).

V. Analysis

The statute at issue here is Idaho Code section 18-8311(1), part of SORA. This statute provides the penalty for an offender " subject to registration who knowingly fails to register, verify his address, or provide any information or notice" as required by SORA. I.C. § 18-8311(1). It states that the offender

shall be guilty of a felony and shall be punished by imprisonment in the state prison system for a period not to exceed ten (10) years and by a fine not to exceed five thousand dollars ($5,000). If the offender is on probation or other supervised release or suspension from incarceration at the time of the violation, the probation or supervised release or suspension shall be revoked and the ...

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