Opinion No. 59
from the District Court of the Fifth Judicial District, State
of Idaho, Twin Falls County. Hon. G. Richard Bevan, District
summarily dismissing petition for post-conviction relief,
reversed and case remanded.
D. Fredericksen, Interim State Appellate Public Defender;
Justin M. Curtis, Deputy Appellate Public Defender, Boise,
Lawrence G. Wasden, Attorney General; Ted S. Tollefson,
Deputy Attorney General, Boise, for respondent.
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
FACTUAL AND PROCEDURAL BACKGROUND
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7, 2008) (unpublished).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
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."
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.
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
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
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.
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