from the District Court of the Fifth Judicial District, State
of Idaho, Cassia County. Hon. John K. Butler, District Judge.
denying motion to withdraw guilty plea, affirmed;
judgment of conviction, affirmed in part,
vacated in part, and case remanded.
D. Fredericksen, State Appellate Public Defender; Reed P.
Anderson, Deputy Appellate Public Defender, Boise, for
Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen,
Deputy Attorney General, Boise, for respondent.
Gene Kincaid, Jr. appeals from the judgment of conviction
entered upon his guilty plea to second degree murder. Kincaid
argues the district court erred when it denied Kincaid's
motion to withdraw his guilty plea and when it ordered
Kincaid to pay two separate fines of $5, 000. The district
court did not err in denying Kincaid's motion to withdraw
his guilty plea. However, because Kincaid was convicted of
only one offense, the district court erred when it imposed
two separate $5, 000 fines. For the reasons set forth below,
the judgment of conviction is affirmed in part, vacated in
part, and the case is remanded to the district court for
entry of an amended judgment of conviction consistent with
I. FACTUAL AND PROCEDURAL BACKGROUND
was charged by information with multiple felonies, which
included Count I: murder in the first degree, Idaho Code
§§ 18-4001, 18-4002, and 18-4003(a), (d); Count II:
mayhem, I.C. § 18-5001; Counts III and IV: penetration
by a foreign object, I.C. § 18-6608(1)(a); and Count V:
concealment or destruction of evidence, I.C. § 18-2603.
The State later amended the information to add a persistent
violator sentencing enhancement, I.C. § 19-2514. Kincaid
entered a not guilty plea, and the case was set for jury
trial. Kincaid waived his right to a speedy trial, and the
parties settled on a trial date.
first pretrial conference, the district court was informed of
on-going settlement negotiations. At the second pretrial
conference, the parties presented an Idaho Criminal Rule
11(f)(1)(A) and (C) plea agreement,  wherein the State agreed to
amend the information to one count of murder in the second
degree and dismiss the sentencing enhancement and the four
remaining charges. The plea agreement explained: "The
Defendant shall not file a motion to withdraw any guilty plea
entered as part of this plea agreement." Additionally,
the plea agreement stated:
The Defendant waives his right to appeal for any issue or
basis, including but not limited to, appealing the judgment
of conviction and/or the sentence pronounced by the Court
and/or the denial of any motion to suppress, motion to
withdraw guilty plea, or Idaho Criminal Rule 35 motion.
exchange for Kincaid's guilty plea, the State agreed to
recommend a unified life sentence, with fifteen to twenty
years determinate. Pursuant to the agreement, Kincaid entered
an Alford plea to one count of murder in the second
degree, I.C. §§ 18-4001, 18-4002, and 18-4003(g).
days before the scheduled sentencing hearing, Kincaid's
attorney filed a motion to withdraw as the attorney of
record. At the time originally set for sentencing, the court
addressed the attorney's motion to withdraw, noting that
although the court was prepared to accept Kincaid's Rule
11 plea agreement, the court had recently been informed by
counsel of Kincaid's desire to withdraw his guilty plea.
After hearing argument on the motion for appointed counsel to
withdraw, the district court denied the motion and offered
the following explanation:
In view of Mr. Kincaid's desire that a motion be filed to
withdraw his plea of guilty--and I will hear further
argument, if counsel wish to do so, but my concerns are that
if I grant, [defense counsel], your motion to withdraw at
this time that whoever is ultimately retained or appointed
would not have the familiarity with the case to necessarily
effectively assist Mr. Kincaid in the filing of his motion to
withdraw his plea, and certainly that does raise some
concerns for me in terms of post-conviction relief.
Kincaid filed a motion to withdraw his guilty plea. At the
hearing on Kincaid's motion, the following exchange
occurred between Kincaid and defense counsel:
Counsel: Were you concerned that I, as your counsel, would no
longer represent you if you didn't follow through with
the plea agreement that was reached?
Kincaid: Yes. Counsel: And why was that?
Kincaid: Because I didn't want to plead to anything I
Counsel: But why were you concerned that I would no longer
Kincaid: Because you told me that if I took this to trial,