State v. Gavin Lamar Mour

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 41788

STATE OF IDAHO, ) 2015 Unpublished Opinion No. 479
)
Plaintiff-Respondent, ) Filed: April 29, 2015
)
v. ) Stephen W. Kenyon, Clerk
)
GAVIN LAMAR MOUR, ) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
Defendant-Appellant. ) BE CITED AS AUTHORITY
)

Appeal from the District Court of the First Judicial District, State of Idaho,
Kootenai County. Hon. John T. Mitchell, District Judge.

Order denying motion to strike language from order relinquishing
jurisdiction, affirmed.

Sara B. Thomas, State Appellate Public Defender; Eric D. Fredericksen, Deputy
Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
Attorney General, Boise, for respondent.
________________________________________________

GUTIERREZ, Judge
Gavin Lamar Mour appeals from the district court’s denial of his motion to strike
language from its order relinquishing jurisdiction. For the reasons set forth below, we affirm.
I.
FACTS AND PROCEDURE
Upon Mour’s guilty plea to possession of a controlled substance, the district court
imposed a unified five-year sentence, with two years determinate, but suspended the sentence
and placed Mour on probation. Ten months later, the State filed a probation violation report,
resulting in the revocation of Mour’s probation and the district court retaining jurisdiction.
Following a jurisdictional review hearing, Mour was again placed on probation. Less than four
months later, the State filed a second probation violation report. The district court again revoked
Mour’s probation and retained jurisdiction.

1
Approximately two months into the period of retained jurisdiction, Mour filed a motion
requesting the district court relinquish jurisdiction. The district court denied the motion, but did
relinquish jurisdiction two months later. The order relinquishing jurisdiction included the
following language:
THE IDAHO DEPARTMENT OF CORRECTION IS ENCOURAGED TO
PROVIDE MR. MOUR WITH THE THERAPEUTIC COMMUNITY
DURING THE SERVICE OF THE TERM OF HIS SENTENCE. HIS
FEBRUARY 3, 2014 APSI INDICATES HE WILL BE GIVEN A “HIGH
RISK PATHWAY” SINCE HIS LSI IS 42[.] THIS COURT REQUESTS AN
OVERRIDE IF THAT IS THE CASE, REQUESTING THAT HE GET
INTO THE THERAPEUTIC COMMUNITY.

THE STATE OF IDAHO COMMISSION OF PARDONS AND PAROLE IS
ENCOURAGED NOT TO CONSIDER MR. MOUR ELIGIBLE FOR
PAROLE UNTIL HE HAS SUCCESSFULLY COMPLETED THE
THERAPEUTIC COMMUNITY.

Mour filed a motion to strike this language from the order. The district court denied the motion,
and Mour now appeals.
II.
ANALYSIS
Mour contends the district court “improperly included unnecessary language” in the order
relinquishing jurisdiction and therefore erred by failing to grant his motion to strike that
language. His argument that the language was improperly included is premised on Idaho
Criminal Rule 33(b) which governs criminal judgments:
The judgment of conviction shall set forth the plea, the verdict or findings,
and the adjudication and sentence. If the defendant is found not guilty or for any
other reason is entitled to be discharged, judgment shall be entered accordingly.
The judgment shall be signed by the judge and entered by the clerk.

I.C.R. 33(b). Although acknowledging that the district court’s order in this case was not a
judgment of conviction “as typically contemplated,” he argues it “is the functional equivalent”
and should therefore only contain the items listed in the rule.
In support of his argument he cites State v. Lee, 156 Idaho 444, 446, 328 P.3d 424, 426
(2014), as “interpreting” Rule 33(b). There, the Supreme Court, exercising its supervisory
power, held the district court erred by denying Lee’s motion to strike the following language
from Lee’s judgment of acquittal: “[b]ecause he is a serious pedophile, it is hoped that the

2
authorities will be able to keep a closer watch on him in the future.” Lee, 156 Idaho at 445, 328
P.3d at 425. In striking this language, the Court noted that “while the district judge did not
transgress any specific rules of this Court, the Court has endeavored to remove excess and
unnecessary verbiage from judgments in the civil arena . . . and they are no more desirable in the
criminal arena.” Id. at 446, 328 P.3d at 426 (emphasis added). The Court concluded that
“judgments should be limited to stating the disposition of the case.” Id.
However, as the State points out, Lee does not support Mour’s assertions on appeal. The
Lee Court specifically noted that inclusion of “superfluous language” in a judgment does not
“transgress any specific rules.” Id. Thus, even if we accept Mour’s contention on appeal (which
he does not support with authority) that the order in this case was the functional equivalent of a
judgment pursuant to Lee, the inclusion of superfluous language does not actually run afoul of a
court rule. This contravenes Mour’s contention that Rule 33(b) prohibits such language. Thus,
Mour’s contention that the district court erred by denying his motion to strike, which is based on
Rule 33(b), is without merit. 1
Mour also cites this Court’s decision in State v. Starry, 130 Idaho 834, 948 P.2d 1133
(Ct. App. 1997), as support for his statement that “‘encouraging’ the parole board to refrain from
granting Mr. Mour parole pending his completion of the Therapeutic Community was improper,
unnecessary and arguably encroaches upon the authority vested in the executive branch through
the Commission of Pardons and Parole.” In Starry, the defendant filed a “petition to commute
sentence,” which was denied by the district court. Id. at 835, 948 P.2d at 1134. On appeal, this
Court noted that the district court did not have the authority to commute a sentence once it had
been imposed and executed because such authority is vested solely in the executive branch acting
as the Commission of Pardons and Parole. Id. (citing IDAHO CONST. ART. IV, § 7; I.C. § 20-
240). The Court then reframed Starry’s petition as a Rule 35 motion and held the district court
had no jurisdiction to rule on the merits of such a motion because it was untimely. Id.
Starry does not support Mour’s contention that the district court acted improperly by
“[e]ncouraging” the Board not to grant him parole pending the completion of therapeutic

1
As indicated above, the Lee Court did strike the language as an exercise of its supervisory
power. Mour does not argue that the appellate court should exercise its supervisory power to
strike the language in this case, and thus we need not reach that issue. And, as the State points
out, even if it was raised, only the Idaho Supreme Court has such supervisory power.

3
community. Starry says nothing in regard to the propriety of the district court encouraging a
course of action; it only states a court does not have the authority to actually commute a sentence
once it has been imposed and executed, which is a much different proposition. As the district
court in this case noted at the hearing on Mour’s motion to strike, the executive branch was not
bound by the court’s recommendation and the court’s statement represented only the court’s
“best thoughts on how to best protect the public by best rehabilitating Mr. Mour” based on its
experience with Mour. To interpret Starry as prohibiting such a recommendation would strain
the decision beyond credulity and we will not do so here. 2 The district court did not err by
denying Mour’s motion to strike. The order of the district court denying Mour’s motion to strike
language from the order relinquishing jurisdiction is affirmed.
Judge LANSING and Judge GRATTON CONCUR.

2
By coming to this holding, we do not comment on the advisability of the inclusion of
such recommendations.
4