State v. Anthony Wayne Walker ( 2013 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 40339
STATE OF IDAHO, ) 2013 Unpublished Opinion No. 587
)
Plaintiff-Respondent, ) Filed: July 24, 2013
)
v. ) Stephen W. Kenyon, Clerk
)
ANTHONY WAYNE WALKER, ) THIS IS AN UNPUBLISHED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. Thomas F. Neville, District Judge.
Order denying I.C.R. 35 motion for reduction of sentence, affirmed.
Silvey Law Office, Ltd; Greg S. Silvey, Star, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
Attorney General, Boise, for respondent.
________________________________________________
Before GUTIERREZ, Chief Judge; LANSING, Judge;
and GRATTON, Judge
PER CURIAM
Anthony Wayne Walker pled guilty to two counts of grand theft by possession of stolen
property. Idaho Code §§ 18-2403(4), 18-2407(1)(b). On the first count, the district court
sentenced Walker to a unified term of ten years, with a minimum period of confinement of three
years, to run concurrently with Walker’s existing sentences for burglary. On the second count,
the district court imposed a unified term of ten years, with a minimum period of confinement of
one year, to run consecutive to the sentence on the first count and concurrent with Walker’s
existing burglary sentences. Walker filed an Idaho Criminal Rule 35 motion, which the district
court denied. Walker appeals asserting that the district court abused its discretion by denying his
Idaho Criminal Rule 35 motion.
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The State asserts that the district court lacked jurisdiction to consider Walker’s Rule 35
motion as it was filed 133 days after entry of judgment. A trial court lacks jurisdiction to
consider a Rule 35 motion filed outside the time limits. State v. Fox, 122 Idaho 550, 835 P.2d
1361 (Ct. App. 1992). The district court’s finding that there was excusable neglect for the late
filing did not revest jurisdiction.
Even if we consider the appeal, it is without merit. 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. Gill, 150 Idaho 183, 186,
244 P.3d 1269, 1272 (Ct. App. 2010). In presenting a Rule 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). Upon review of the record, including any new information submitted with Walker’s
Rule 35 motion, we conclude no abuse of discretion has been shown. Therefore, the district
court’s order denying Walker’s Rule 35 motion is affirmed.
2