Challenge to Validity of Charge Waived by Failure to Raise in District Court.

Here's the latest Supreme Court case refusing to consider an issue because it was not raised below. State v. Luis Pierce, http://www.isc.idaho.gov/opinions/State%20v.%20Pierce%20-%20FINAL.pdf. In Pierce, the appellant pleaded guilty to an information charging sex abuse of a child under sixteen (pulling down the panties of a four year old and having a look) and was placed on probation. He later admitted to a violation of that probation. The district court revoked and imposed the suspended sentence.

On appeal, sharp-eyed counsel noticed that the prosecutor made a passing reference to presenting the case to the grand jury. When she was offering photographs as a supplement to the presentence report, the prosecutor stated "These were shown to the grand jury as well." Appellate counsel then challenged the subject-matter jurisdiction of the district court under Article I, § 8 of the state constitution which provides, in part, "[t]hat after a charge has been ignored by a grand jury, no person shall be held to answer, or for trial therefor, upon information of the public prosecutor."

The Court, however, declined to reach the issue because there was no challenge to validity of the information made in the district court. In resolving the issue this way, the Court found that a violation of the above constitutional provision did not deprive the district court of subject-matter jurisdiction. Otherwise, the Court would have had to reach the issue as subject matter jurisdiction can be raised "at any time, including for the first time on appeal." State v. Rogers, 140 Idaho 223, 227, 91 P.3d 1127, 1131 (2004). The Court wrote that "under our current rules of criminal procedure, the appropriate course of action in cases wherein a grand jury has ignored the charge and returned a not true bill is for the defendant to move for dismissal pursuant to I.C.R. 12(b). The failure to do so constitutes a waiver of the issue in the criminal action."

This part of the opinion is concerning. Defense counsel couldn't have had an inkling that the case had been presented to the grand jury until the prosecutor made the comment about the grand jury at sentencing. But motions under I.C.R. 12(b) must be "raised before the trial[.]" So, defense counsel is required to find out whether the prosecutor submitted the case to the grand jury in every case where the case proceeds by the filing of a complaint? I assume the late disclosure in this case amounts to "excusable neglect" which permits the court "to relieve the party of failure to comply with this rule" under 12(d). But if this ever happens to me, I'm going to file a Rule 12(b) motion and a motion to withdraw the guilty plea under Rule 33(c).