Opinion
Docket No. 26007.
Filed July 9, 2001.
Appeal from the District Court of the Third Judicial District, State of Idaho, Canyon County. Hon. Dennis E. Goff, District Judge.
Order denying Rule 35 motion for correction of sentence, affirmed.
Ronaldo A. Coulter, State Appellate Public Defender; Nancy C. Luebbert, Special Deputy Appellate Public Defender, Boise, for appellant.
Hon. Alan G. Lance, Attorney General; T. Paul Krueger II, Deputy Attorney General, Boise, for respondent.
In this appeal we are asked once again, as we have been asked several times recently, to allow credit against a defendant's prison sentence for a substantial period of incarceration that was served as a condition of probation before the probation was revoked. Once again, we deny the request based upon decisional law that establishes a mandatory precedent for this Court.
Loren Dana pleaded guilty to two counts of felony driving without privileges, Idaho Code § 18-8001(5) (1995). For each count, the district court imposed a three-year determinate sentence which is the maximum sentence allowed by statute, I.C. § 18-8001(5)(a), and the court further ordered that these maximum sentences be served consecutively. The district court suspended the sentences, however, and placed Dana on probation for three years. As a condition of probation, the court required that Dana serve 180 days in jail, with 60 days of that period to be served immediately and 120 days to be treated as discretionary jail time that would be served at the direction of Dana's probation officer. Dana served the first sixty days immediately after sentencing. A few months later, after his release on probation, Dana tested positive for methamphetamine, and his probation officer ordered that he serve the remaining 120 days that had been imposed as a condition of his probation.
This offense has subsequently been reduced to misdemeanor status. See 1998 Idaho Sess. Laws, ch. 325 at 1050.
Shortly after Dana's release from this 120-day period of incarceration, the probation officer filed a report of probation violation alleging that Dana had again tested positive for methamphetamine. After a hearing on this allegation, the district court found Dana to be in violation of his probation terms, revoked probation, and ordered execution of the original sentences. Dana appealed from this order, challenging only the district court's finding that the State had adequately proved a probation violation. This Court affirmed the order in an unpublished decision, State v. Dana, Docket No. 24987 (Ct.App. July 19, 1999). In that appeal, Dana did not challenge the legality of his sentences or contend that his sentences were excessive.
Following the denial of his appeal, Dana filed a pro se motion pursuant to Idaho Criminal Rule 35 for correction of his sentences. He contended that his sentences were illegal because he had not received credit against the prison terms for the 180 days that he had served in jail as a condition of his probation. The district court denied the motion, and Dana appeals.
In his argument on appeal, Dana acknowledges the Idaho Supreme Court's holding in State v. Banks, 121 Idaho 608, 826 P.2d 1320 (1992), that the time which a defendant spends in jail after imposition of sentence as a condition of probation is not required to be credited against the sentence. According to the Banks rationale, a defendant "is not entitled to credit for the time he voluntarily surrendered to gain probation." Id. at 610, 826 P.2d at 1322. Dana also recognizes that this Court has consistently followed Banks, as it is obligated to do, in State v. Jakoski, 132 Idaho 67, 966 P.2d 663 (Ct.App. 1998); State v. Lively, 131 Idaho 279, 280-81, 954 P.2d 1075, 1076-77 (Ct.App. 1998); State v. Buys, 129 Idaho 122, 126-27, 922 P.2d 419, 423-24 (Ct.App. 1996); and State v. Peterson, 121 Idaho 775, 778-79, 828 P.2d 338, 341-42 (Ct.App. 1992). Dana urges that his case should be distinguished from the foregoing authorities, however, because the denial of credit for time served as a condition of his probation, coupled with the district court's imposition of the maximum possible sentences, means that Dana will actually be incarcerated longer than the maximum periods of imprisonment authorized by statute for his offenses. Dana argues that even when jail time has been voluntarily accepted as a condition of probation, a defendant should not be deprived of his liberty for more than the total time allowed by statute.
We are constrained to hold otherwise. Although Dana's circumstance represents an extreme result of the rule disallowing credit for incarceration served as a condition of probation, it does not legally distinguish his case from Banks. Under our Supreme Court's decision in Banks, a period of incarceration served as a condition of probation is simply not a part of the defendant's penitentiary sentence. Applying that rationale, Dana has not been sentenced to a term exceeding the statutory maximum.
This Court is not blind to the ironies and inequities that can occur through application of the Banks rule. Some of these have been described in the concurring opinions of Judge Schwartzman in Jakoski, 132 Idaho at 69, 966 P.2d at 665, and Lively, 131 Idaho at 281, 954 P.2d at 1077. Nevertheless, unless and until the Idaho Supreme Court elects to reconsider Banks, that decision is the law in this state. We note, however, that despite the comments in the concurring opinions in Jakoski and Lively, no petition for review by the Idaho Supreme Court was filed in either of those cases, and to this Court's knowledge, the Supreme Court has not been recently asked to reevaluate the Banks rule. Dana may request such a reevaluation, should he wish to do so, by filing a petition for review of this decision by the Idaho Supreme Court. In the meantime, based upon Banks and its progeny, we hold that Dana is not entitled to credit for the jail term imposed as a condition of his probation.
Accordingly, the district court's order denying Dana's motion for correction of his sentence is affirmed.
Judge PERRY CONCURS.
I, too, am constrained to agree with the rationale of this decision, albeit reluctantly. The net result for this woebegone driving without privileges "scofflaw" is that he will endure six and one-half years of incarceration at state expense for these two offenses which are now no longer felonies under Idaho law. Had this case ever come before me as a straight sentence review, I would have voted for a reduction. In my opinion, I do not believe that six and one-half years of incarceration is an expedient use of our limited penitentiary space for this type of crime.
Current figures would value the costs of this incarceration at over $100,000.