State v. Joseph Scott Hopkins ( 2011 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 37817
STATE OF IDAHO, ) 2011 Unpublished Opinion No. 306
)
Plaintiff-Respondent, ) Filed: January 5, 2011
)
v. ) Stephen W. Kenyon, Clerk
)
JOSEPH SCOTT HOPKINS, ) THIS IS AN UNPUBLISHED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.
Order denying motion for credit for time served, affirmed.
Joseph Scott Hopkins, Boise, pro se appellant.
Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
Attorney General, Boise, for respondent.
________________________________________________
Before GRATTON, Chief Judge, LANSING, Judge
and MELANSON, Judge
PER CURIAM
Joseph Scott Hopkins was convicted of lewd conduct with a minor under sixteen, I.C.
§ 18-1508, in 2001. The court imposed a unified eight-year sentence with two years determinate.
In April 2004, Hopkins was released on parole, but his parole was revoked more than four years
later. In May 2010, Hopkins filed a motion for credit for time served, claiming that he should
receive credit on his sentence for the period when he was free on parole. The district court
denied the motion, and Hopkins appeals.
Hopkins’ claim for credit against his sentence for time spent on parole is without merit,
for parole time does not constitute a part of a sentence of imprisonment. Time served on parole
is not the same as time served in a correctional institution, see Flores v. State, 109 Idaho 182,
183, 706 P.2d 71, 72 (Ct. App. 1985), for parolees have vastly greater freedom than inmates do.
1
Idaho Code Section 20-228 provides that when a person is recommitted after revocation of
parole he/she “must serve out the sentence, and the time during which such prisoner was out on
parole shall not be deemed a part thereof; unless the [parole] commission, in its discretion, shall
determine otherwise . . . .” This statutory language is clear and unambiguous in providing that
parole time is credited against a sentence of imprisonment only if the Parole Commission, in its
discretion, authorizes it. See Gibson v. Bennett, 141 Idaho 270, 274-75, 108 P.3d 417, 421-22
(Ct. App. 2005). This statutory provision “provides an incentive for compliance with the terms
of parole.” Id. at 275, 108 P.3d at 422. See also Mattoon v. Blades, 145 Idaho 634, 638, 181
P.3d 1242, 1246 (2008). Here, the Commission determined that Hopkins would not receive such
credit.
Hopkins seems to argue that the district court’s denial of his motion should be reversed
because in its initial order denying Hopkins’ motion, the court incorrectly cited to an
inapplicable section of the Idaho Code. However, the district court corrected this error in a
subsequent order. In any event, the error in citation is of no consequence on appellate review
because this Court, applying the correct statutory provisions, has determined that Hopkins’
motion was without merit.
Hopkins raises other issues in his appellate briefing, including constitutional claims, that
we will not address because they were not raised in the district court. The longstanding rule in
Idaho is that an appellate court will not consider issues, including constitutional issues, that are
presented for the first time on appeal. State v. Fry, 128 Idaho 50, 54-55, 910 P.2d 164, 168-69
(Ct. App. 1994).
The order of the district court denying Hopkins’ motion for credit for time served is
affirmed.
2