State v. Eli Thomas Mosho ( 2010 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 36836
STATE OF IDAHO, ) 2010 Unpublished Opinion No. 600
)
Plaintiff-Respondent, ) Filed: August 19, 2010
)
v. ) Stephen W. Kenyon, Clerk
)
ELI THOMAS MOSHO, ) THIS IS AN UNPUBLISHED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. Peter D. McDermott, District Judge.
Order revoking probation, affirmed.
Molly J. Huskey, State Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
Attorney General, Boise, for respondent.
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PERRY, Judge Pro Tem
Eli Thomas Mosho appeals from the district court’s order revoking his probation. For the
reasons set forth below, we affirm.
Mosho pleaded guilty to sexual abuse of a child under the age of sixteen, I.C. § 18-
1506(1)(b), and was sentenced to a unified term of seven years with three years fixed. The
district court retained jurisdiction and, following Mosho’s successful completion of the program,
his sentence was suspended and he was placed on supervised probation.
Thereafter, a report of violation was filed alleging that Mosho had violated several terms
of his probation. Mosho entered an admission to some of the violations and the state withdrew
the remaining allegations. On March 13, 2009, the district court filed its “Minute Entry and
Order and Commitment Order,” which revoked Mosho’s probation and reinstated his sentence of
seven years with three fixed. Mosho was placed in the custody of the Department of Correction
to serve out his sentence.
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Over two months later, on May 26, Mosho filed an Idaho Criminal Rule 35 motion
seeking reduction of his sentence. In his motion Mosho did not claim that his sentence was
illegal, but requested reconsideration and reduction of his sentence based upon the existing
record. The district court held an evidentiary hearing on Mosho’s motion allowing further
testimony to be offered. After the hearing the district court granted Mosho’s motion placing him
back on probation and ordering that Mosho remain in the Bannock County Jail until his
probation officer could find suitable housing for him in the community.
Approximately one month later, the probation officer filed a progress report with the
district court. In this report the probation officer set forth several disciplinary problems Mosho
had encountered during his prior incarceration. The probation officer requested that the district
court reconsider its granting of Mosho’s Rule 35 motion and once again reinstate Mosho’s
original sentence. The district court held a hearing on the probation officer’s request at which
the district court addressed the various concerns with Mosho, his counsel, and the state. At the
conclusion of the hearing, the district revoked Mosho’s probation, reinstated his sentence, and
recommitted him to the custody of the Department of Correction. Mosho appealed.
On appeal, Mosho raises several arguments. First, Mosho claims that his due process
rights were violated when the district court revoked his probation without proper notice. Second,
he contends that the district court erred when it revoked his probation without finding that
Mosho had violated any term of the reinstated probation. Finally, Mosho cites error in the
district court’s sua sponte hearing to reconsider its previous granting of Mosho’s Rule 35 motion.
The state responds first, that the district court acted without jurisdiction in ruling on
Mosho’s Rule 35 motion, and therefore all of the district court’s actions are without authority
and void. In addition, the state argues that if the district court did have jurisdiction to act in
Mosho’s case no error has been shown.
Idaho Criminal Rule 35 provides, in part: “The court may also reduce a sentence upon
revocation of probation or upon motion made within fourteen (14) days after the filing of the
order revoking probation.” The Idaho appellate courts have long held that the filing limitations
found in Rule 35 are jurisdictional in nature and a limit on the authority of the district court to
consider the motion. State v. Sutton, 113 Idaho 832, 833, 748 P.2d 416, 417 (Ct. App. 1987).
Unless the defendant files his or her motion within the time specified in the rule the district court
lacks jurisdiction to grant any relief. State v. Fox, 122 Idaho 550, 552, 835 P.2d 1361, 1363 (Ct.
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App. 1992); State v. Morris, 119 Idaho 448, 450, 807 P.2d 1286, 1288 (Ct. App. 1991). When a
district court lacks jurisdiction under Rule 35, its order granting relief is a nullity and the original
order revoking probation remains undisturbed and in effect. See State v. Parvin, 137 Idaho 783,
785-86, 53 P.3d 834, 836-37 (Ct. App. 2002).
In this instance, the district court revoked Mosho’s probation and reinstated his unified
sentence of seven years with three years fixed on March 13. Mosho did not file his Rule 35
motion until May 26, well after the time allowed pursuant to the rule. Therefore Mosho’s
untimely Rule 35 motion failed to vest the district court with jurisdiction to grant the requested
relief. Without the authority to act, the district court’s placing Mosho back on probation
following a hearing on the motion was improper and void. Mosho cannot now complain of the
district court’s subsequent reconsideration of that decision. The district court’s original order
revoking Mosho’s probation and imposing his sentence filed March 13 remains in effect.
Accordingly, we affirm, albeit on different grounds, the district court’s July 13, 2009,
order which reversed its June 8, 2009, order granting reduction of Mosho’s sentence.
Chief Judge LANSING and Judge MELANSON, CONCUR.
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