Opinion No. 73
from the District Court of the Fourth Judicial District,
State of Idaho, Ada County. Hon. Melissa Moody, District
denying second motion to amend judgment of conviction,
Barnum, Howell & Gunn, PLLC; Randall S. Barnum, Boise,
for appellant. Matthew Gunn argued.
Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy
Attorney General, Boise, for respondent. Mark W. Olsen
Alan Moore appeals from the district court's denial of
his motion to reduce his felony conviction to a misdemeanor
conviction pursuant to Idaho Code Section 19-2604. Moore
argues I.C. § 19-2604(3) is unconstitutional because it
violates Idaho's separation of powers doctrine, violates
his Fourteenth Amendment due process rights under the United
States Constitution, and denies him equal protection under
the Idaho and United States Constitutions. We hold I.C.
§ 19-2604(3) does not violate Idaho's separation of
powers doctrine, Moore waived his Fourteenth Amendment due
process claim by failing to provide authority, and I.C.
§ 19-2604(3) did not violate Moore's equal
protection rights under the Idaho or United States
AND PROCEDURAL BACKGROUND
2003, Moore pleaded guilty to aiding and abetting a robbery,
I.C. § 18-6501. The district court imposed a unified
five-year sentence, with two years determinate, and retained
jurisdiction for 180 days. After successfully completing the
period of retained jurisdiction, the district court suspended
Moore's sentence and placed him on probation for five
years. Moore successfully completed probation.
2013, the Idaho Legislature amended I.C. § 19-2604(3) to
permit a defendant who had been convicted of a felony and
discharged from probation to move the sentencing court to
reduce the felony conviction to a misdemeanor conviction.
However, the amended statute requires the prosecuting
attorney to stipulate to the reduction under certain
circumstances. Moore's case is one in which the
prosecutor must stipulate to the reduction. In 2014, Moore
moved the district court to amend his felony robbery
conviction to a misdemeanor conviction pursuant to I.C.
§ 19-2604. The prosecutor objected to the motion, citing
I.C. § 19-2604(3)(c)(ix)'s requirement of
prosecutorial stipulation before the court may amend
judgments of conviction for robbery if more than five years
have elapsed since the defendant's discharge from
probation. The district court denied Moore's motion,
recognizing it had "no discretion to grant the relief
sought, based on the prosecuting attorney's
objection." Moore appealed from the district court's
decision and this Court affirmed, holding Moore waived his
constitutional arguments because he raised them for the first
time on appeal and he failed to satisfy the first prong of
Perry. See State v. Moore, 158 Idaho
943, 354 P.3d 505 (Ct. App. 2015).
2015, Moore filed a second motion to amend his felony robbery
conviction to a misdemeanor. The prosecuting attorney again
objected. Moore argued I.C. § 19-2604(3) was
unconstitutional because it violated Idaho's separation
of powers doctrine, violated his Fourteenth Amendment due
process rights under the United States Constitution, and
denied Moore equal protection under the Idaho and United
States Constitutions. The district court found I.C. §
19-2604(3) does not violate the separation of powers
doctrine, nor does it violate the due process or equal
protection clauses. The district court denied Moore's
motion for the second time, "based solely upon the
prosecuting attorney's objection." Moore timely
the constitutionality of a statute is challenged, we review
the lower court's decision de novo. State v.
Cobb, 132 Idaho 195, 197, 969 P.2d 244, 246 (1998);
State v. Martin, 148 Idaho 31, 34, 218 P.3d 10, 13
(Ct. App. 2009). The party challenging a statute on
constitutional grounds bears the burden of proof and must
overcome a strong presumption of validity. State v.
Freitas, 157 Idaho 257, ...