Course of Conduct in Felony Stalking Charge May Not Include Acts Constituting Prior Misdemeanor Stalking Conviction

The Court has issued its opinion in State v. Stewart. Mr. Stewart was charged with felony stalking. The Information alleged that a prior misdemeanor stalking was part of the course of conduct constituting the felony. It also alleged that the crime was a felony because Mr. Stewart had been previously convicted of stalking. Mr. Stewart's motion to dismiss the information was denied and he entered a conditional plea of guilty. Today the Court vacated the conviction.

On appeal, the Court first noted that: "To commit the crime of felony stalking, the person must first violate section 18-7906 by engaging in a prohibited course of conduct. That course of conduct requires repeated acts of nonconsensual contact involving the victim or a family or household member of the victim." (Internal citations omitted.) It then held: "To have committed felony stalking under this subsection, Defendant would have to have engaged in a course of conduct that violated section 18-7906 and he would have to have been previously convicted of misdemeanor stalking by earlier engaging in a course of conduct that violated section 18-7906. There would have to be two separate courses of conduct, each of which violates that section. Otherwise, he could not have engaged in a course of conduct that violated section 18-7906 and previously been convicted of misdemeanor stalking." Accordingly, it vacated the conviction and remanded for further proceedings.

The Court also construes the meaning of other subsections of the statute and notes that it appears that Mr. Stewart could not have committed the offenses under those theories either.

Finally, the Court holds that a defendant who has waived a preliminary hearing cannot later dispute whether there is probable cause to charge even if the state amends the information. But he can challenge whether there was probable cause to issue an arrest warrant.

State v. Stewart, http://www.isc.idaho.gov/opinions/State%20v.%20Stewart%20Opinion.pdf