State v. Justin Lee Dibkey ( 2011 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 37217
STATE OF IDAHO, ) 2011 Unpublished Opinion No. 329
)
Plaintiff-Respondent, ) Filed: January 24, 2011
)
v. ) Stephen W. Kenyon, Clerk
)
JUSTIN LEE DIBKEY, ) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
Defendant-Appellant. ) BE CITED AS AUTHORITY
)
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County. Hon. Michael E. Wetherell, District Judge.
Appeal from order revoking probation and requiring execution of unified twelve-
year sentence with three-year determinate term for attempted strangulation,
dismissed
Molly J. Huskey, State Appellate Public Defender; Spencer J. Hahn, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
Attorney General, Boise, for respondent.
________________________________________________
Before GRATTON, Chief Judge, LANSING, Judge
and GUTIERREZ, Judge
PER CURIAM
Justin Lee Dibkey was convicted of attempted strangulation, Idaho Code § 18-923. The
district court imposed a unified twelve-year sentence with a three-year determinate term, but
retained jurisdiction. Following this period of retained jurisdiction, the district court entered an
order retaining jurisdiction a second time. After Dibkey’s second period of retained jurisdiction,
the court entered an order suspending Dibkey’s sentence and again placing him on probation.
Subsequently, Dibkey admitted to violating several terms of the probation, and the district court
consequently revoked probation and ordered execution of the original sentence. Dibkey appeals,
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contending that the district court abused its discretion in revoking probation and that the sentence
is excessive.
We consider first the State’s argument that Dibkey can obtain no relief because the
district court had no jurisdiction to retain jurisdiction a second time and hence no jurisdiction to
place Dibkey on probation at the end of the second retained jurisdiction period. The State is
correct.
The only authority for a trial court to place a defendant on a second period of retained
jurisdiction within the same case is that provided in Idaho Code § 19-2601(4) which states, in
part, “The court in its discretion may sentence a defendant to more than one (1) period of
retained jurisdiction after a defendant has been placed on probation in a case.” The Idaho
Supreme Court recently held that this statutory provision does not empower a court to place a
defendant on successive periods of retained jurisdiction without an intervening period of
probation. State v. Urrabazo, ___ Idaho ___, ___ P.3d ___ (Dec. 23, 2010). The Court there
said:
The plain language of section 19-2601(4) unconditionally requires an intervening
period of probation prior to ordering an additional period of retained jurisdiction.
The provision only permits a court to sentence a defendant to a second rider “after
a defendant has been placed on probation in a case.” In other words, a court may
retain jurisdiction for a second time only after sentencing the defendant to a
period of probation.
The Supreme Court further held that this limitation on the trial court’s power in section 19-
2601(4) is jurisdictional, and therefore the district court’s orders granting Urrabazo a second
rider and relinquishing jurisdiction thereafter were void for want of subject matter jurisdiction.
Consequently, the Supreme Court found Urrabazo’s appeal to be untimely. The Court explained:
Idaho Appellate Rule 14(a) states that an appeal in a criminal matter must be filed
with the district court “within 42 days from the date evidenced by the filing stamp
of the clerk of the court on any judgment or order of the district court appealable
as a matter of right . . . .” I.A.R. 14(a). Additionally, this rule provides that “the
time to file an appeal is enlarged by the length of time the district court actually
retains jurisdiction pursuant to Idaho Code. When the court releases its retained
jurisdiction . . . the time within which to file a notice of appeal shall commence to
run.” Id. As such, the time for filing an appeal in this case commenced with the
district court’s relinquishing jurisdiction over Urrabazo and Urrabazo had to file
his appeal within 42 days of that time in order for the appeal to be timely.
Because Urrabazo’s appeal was not filed until September 8, 2006, it is untimely,
and this Court will not consider the merits of the appeal.
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Dibkey’s case is indistinguishable from Urrabazo. Therefore, his appeal is dismissed as
untimely.
3