State v. Cheryl Linford, fka Stone ( 2018 )


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  •                IN THE COURT OF APPEALS OF THE STATE OF IDAHO
    Docket No. 45358 & 45359
    STATE OF IDAHO,                                 )   2018 Unpublished Opinion No. 353
    )
    Plaintiff-Respondent,                    )   Filed: February 13, 2018
    )
    v.                                              )   Karel A. Lehrman, Clerk
    )
    CHERYL LINFORD, fka STONE,                      )   THIS IS AN UNPUBLISHED
    )   OPINION AND SHALL NOT
    Defendant-Appellant.                     )   BE CITED AS AUTHORITY
    )
    Appeal from the District Court of the Sixth Judicial District, State of Idaho,
    Bannock County. Hon. Robert C. Naftz, District Judge.
    Order denying Linford’s Idaho Criminal Rule 35 motion, affirmed; orders on
    motion for credit for time served, affirmed.
    Eric D. Fredericksen, State Appellate Public Defender; Liz A. Allred, Deputy
    Appellate Public Defender, Boise, for appellant.
    Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
    General, Boise, for respondent.
    ________________________________________________
    Before GRATTON, Chief Judge; GUTIERREZ, Judge;
    and HUSKEY, Judge
    ________________________________________________
    PER CURIAM
    In Docket No. 45358, Cheryl Linford, fka Stone, pleaded guilty to delivery of a
    controlled substance, oxycodone HCI, Idaho Code § 37-2732(a)(1)(A).             The district court
    imposed a unified seven-year sentence, with three years determinate, but after a period of
    retained jurisdiction, suspended the sentence and placed Linford on probation. Linford filed an
    Idaho Criminal Rule 35 motion. Subsequently, Linford admitted to violating the terms of the
    probation, and entered a guilty plea in Docket No. 45359 to possession of a controlled substance,
    methamphetamine, I.C. § 37-2732(c)(1). In. 45358, the district court revoked probation and
    reinstated the original sentence. In 45359, the district court imposed a unified six-year sentence,
    with three years determinate, to run concurrently with the sentence in 45358. The district court
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    retained jurisdiction. The district court held an I.C.R. 35 motion hearing where it held the
    motion in abeyance until further notice by defense counsel. After the second period of retained
    jurisdiction, the court suspended the sentences and placed Linford on probation.
    Linford admitting violating the terms of her probation and the district court continued her
    probation with the condition that she participate in the Bannock County Wood Court. Once
    again, Linford admitted violating the terms of her probation and the district court revoked
    probation and executed the underlying sentences. In 45358, the district court gave Linford credit
    for 403 days served at the Bannock County Jail in addition to any time spent on the retained
    jurisdiction program. In 45359, the district court granted credit for 250 days served at the
    Bannock County Jail in addition to any time spent on the retained jurisdiction program.
    In 45358, Linford filed an I.C.R. 35 motion as well as a motion for credit for time served.
    The district court issued an order crediting Linford with 392 days. Following an I.C.R. 35
    motion for leniency hearing, the district court denied Linford’s I.C.R. 35 motion. In 45359,
    Linford filed a motion for credit for time served. The district court issued an order crediting
    Linford with 245 days.
    Linford appeals, contending that in 45358, the district court abused its discretion by
    failing to grant her I.C.R. 35 motion and that the district court erred in both cases by failing to
    grant her the correct amount of credit for time served.
    A motion for reduction of sentence under I.C.R. 35 is essentially a plea for leniency,
    addressed to the sound discretion of the court. State v. Knighton, 
    143 Idaho 318
    , 319, 
    144 P.3d 23
    , 24 (2006); State v. Allbee, 
    115 Idaho 845
    , 846, 
    771 P.2d 66
    , 67 (Ct. App. 1989). In
    presenting an I.C.R. 35 motion, the defendant must show that the sentence is excessive in light of
    new or additional information subsequently provided to the district court in support of the
    motion. State v. Huffman, 
    144 Idaho 201
    , 203, 
    159 P.3d 838
    , 840 (2007). An appeal from the
    denial of an I.C.R. 35 motion cannot be used as a vehicle to review the underlying sentence
    absent the presentation of new information. 
    Id. Because no
    new or additional information in
    support of Linford’s I.C.R. 35 motion was presented, the district court did not abuse its
    discretion.
    The awarding of credit for time served is governed by I.C. § 18-309. The language of
    I.C. § 18-309 is mandatory and requires that, in sentencing a criminal defendant or when hearing
    an I.C.R. 35(c) motion for credit for time served, the court give the appropriate credit for
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    prejudgment incarceration. State v. Moore, 
    156 Idaho 17
    , 20-21, 
    319 P.3d 501
    , 504-05 (Ct. App.
    2014). This means that the defendant is entitled to credit for all time spent incarcerated before
    judgment. 
    Moore, 156 Idaho at 21
    , 319 P.3d at 505. The converse is also true--that the
    defendant is not entitled to credit under I.C. § 18-309 for any time not actually spent incarcerated
    before judgment. 
    Id. See also
    State v. Hernandez, 
    120 Idaho 785
    , 792, 
    820 P.2d 380
    , 387 (Ct.
    App. 1991) (stating that I.C. § 18-309 does not allow the defendant to receive credit for more
    time than he or she has actually been in confinement). Accordingly, a district court may only
    give credit for the correct amount of time actually served by the defendant prior to imposition of
    judgment in the case; the district court does not have discretion to award credit for time served
    that is either more or less than that. 
    Moore, 156 Idaho at 21
    , 319 P.3d at 505. Thus, the
    defendant is entitled to credit for time actually served prior to entry of judgment in the case. 
    Id. In each
    case in its order, the district court listed all the days Stone was incarcerated and
    gave her credit for the days she served. Stone does not argue the district court’s calculations are
    incorrect or that she is entitled to additional days. We, therefore, affirm the district court’s
    orders for credit for time served
    For the foregoing reasons, the district court’s order denying Linford’s I.C.R. 35 motion is
    affirmed and the district court’s orders on the motions for credit for time served are affirmed.
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