State v. Daniel James Carter

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 40164

STATE OF IDAHO, ) 2013 Unpublished Opinion No. 705
)
Plaintiff-Respondent, ) Filed: October 10, 2013
)
v. ) Stephen W. Kenyon, Clerk
)
DANIEL JAMES CARTER, ) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
Defendant-Appellant. ) BE CITED AS AUTHORITY
)

Appeal from the District Court of the Third Judicial District, State of Idaho,
Canyon County. Hon. Renae J. Hoff, District Judge.

Order revoking probation and reinstating previously suspended ten-year sentence
for felony driving under the influence, affirmed; order denying I.C.R. 35 motion
for reduction of sentence, affirmed.

Robyn Fyffe of Nevin, Benjamin, McKay & Bartlett, LLP, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
General, Boise, for respondent.
________________________________________________

Before LANSING, Judge; GRATTON, Judge;
and MELANSON, Judge

PER CURIAM
Daniel James Carter pled guilty to felony driving under the influence. I.C. §§ 18-8004
and 18-8005. The district court imposed a ten-year determinate sentence, but retained
jurisdiction. Following successful completion of his retained jurisdiction, the district court
suspended the sentence and placed Carter on probation. Carter admitted to violating the terms of
his probation by being charged with new crimes. The district court revoked Carter’s probation
and the suspended sentence was ordered into execution. During the disposition hearing on his
probation violation, Carter made an oral motion for an I.C.R. 35 reduction of his sentence, which
the district court denied. Thereafter, Carter filed a successive Rule 35 motion for reduction of
his sentence based on new information, which the district court also denied. On appeal, Carter

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does not challenge the district court’s decision to revoke probation, but argues only that this
sentence is excessive and that the district court denied his successive Rule 35 motion.
Sentencing is a matter for the trial court’s discretion. Both our standard of review and the
factors to be considered in evaluating the reasonableness of the sentence are well established and
need not be repeated here. See State v. Hernandez, 121 Idaho 114, 117-18, 822 P.2d 1011, 1014-
15 (Ct. App. 1991); State v. Lopez, 106 Idaho 447, 449-51, 680 P.2d 869, 871-73 (Ct. App.
1984); State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct. App. 1982). When reviewing
the length of a sentence, we consider the defendant’s entire sentence. State v. Oliver, 144 Idaho
722, 726, 170 P.3d 387, 391 (2007).
When we review a sentence that is ordered into execution following a period of
probation, we will examine the entire record encompassing events before and after the original
judgment. State v. Hanington, 148 Idaho 26, 29, 218 P.3d 5, 8 (Ct. App. 2009). We base our
review upon the facts existing when the sentence was imposed as well as events occurring
between the original sentencing and the revocation of probation. Id. Thus, this Court will
consider the elements of the record before the trial court that are properly made part of the record
on appeal and are relevant to the defendant’s contention that the trial court should have reduced
the sentence sua sponte upon revocation of probation. State v. Morgan, 153 Idaho 618, 621, 288
P.3d 835, 838 (Ct. App. 2012). Applying these standards, and having reviewed the record in this
case, we cannot say that the district court abused its discretion.
Idaho Criminal Rule 35 provides that no defendant may file more than one motion
seeking a reduction of sentence. The prohibition of successive motions under Rule 35 is
jurisdictional. State v. Bottens, 137 Idaho 730, 732, 52 P.3d 875, 877 (Ct. App. 2002). Because
Carter’s Rule 35 motion was successive, the district court did note err in denying Carter’s
successive Rule35 motion.
The district court’s order revoking probation and imposing sentence and the district
court’s order denying Carter’s Rule 35 motion are affirmed.

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