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Diamond v. State

Court of Appeals of Idaho

September 12, 2016

JOHNNY JAY DIAMOND, Petitioner-Appellant,
v.
STATE OF IDAHO, Respondent.

         2016 Opinion No. 59

         Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin Falls County. Hon. G. Richard Bevan, District Judge.

         Judgment summarily dismissing petition for post-conviction relief, reversed and case remanded.

          Eric D. Fredericksen, Interim State Appellate Public Defender; Justin M. Curtis, Deputy Appellate Public Defender, Boise, for appellant.

          Hon. Lawrence G. Wasden, Attorney General; Ted S. Tollefson, Deputy Attorney General, Boise, for respondent.

          GRATTON, Judge

         Johnny Jay Diamond appeals from the district court's judgment summarily dismissing his petition for post-conviction relief. We reverse the judgment and remand the case for further proceedings.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Diamond pled guilty to aiding and abetting robbery, Idaho Code §§ 18-204, 18-306, 18-6501, 18-6502. The sentencing court placed Diamond on probation. Diamond appealed, and this Court affirmed his judgment of conviction and sentence. See State v. Diamond, Docket No. 34554 (Ct. App. May 7, 2008) (unpublished). Diamond violated his probation by failing to pay restitution. The sentencing court entered an order revoking his probation and imposing his sentence. Diamond did not appeal the sentencing court's order revoking probation.

         Diamond filed a pro se petition for post-conviction relief, seeking release and alleging his continued incarceration violated the Eighth Amendment and his trial counsel was ineffective for failing to file an appeal. The district court appointed counsel and ordered Diamond to amend his petition. The court's order required the amended petition to "1) fully comply with the required format of I.C.R. 57(a); 2) specifically set forth the grounds upon which the [petition] is based; and 3) clearly state the relief desired as required by Idaho Code § 19-4903."

         Diamond amended his petition. The amended petition stated that Diamond had appealed his judgment of conviction and sentence, incorporated his original petition and affidavit into the amended petition by reference, and requested that the district court vacate his order of commitment and place him back on probation. Further, the amended petition added a claim that Diamond's trial counsel was ineffective for failing to inform him that his inability to pay restitution would be a defense to his probation violation.

         The State answered the amended petition, asserting "that the incorporation of the original pro-se Petition and Affidavit [would be] inappropriate" in light of the court's order and requesting "that the Court not consider the prior filing."

         The district court noticed its intent to dismiss the amended petition. The court noted that the amended petition contained "one claim: that [Diamond] was never advised that inability to pay was a defense to a probation violation for failure to pay restitution." The court explained its intent to dismiss that claim, noting that the record contradicted Diamond's claim that his counsel had not informed him that his inability to pay restitution would be a defense to his probation violation. The court did not say anything about the claims incorporated by reference into the amended petition.

         Diamond responded to the district court's notice of intent to dismiss, addressing the court's argument regarding the claim raised in the amended petition. Diamond's response also stated that the amended petition "incorporated his original Petition and Affidavit, " but did not challenge the court's conclusion that his amended petition contained only one claim.

         The district court dismissed Diamond's amended petition, finding Diamond's response regarding the claim raised in the amended petition to be "bare and conclusory." The court did not say anything about the claims incorporated by ...


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