Monday, December 27, 2010

ICR 25(a) Reinstated

The Supreme Court has reinstated, effective 1/1/2011, the rule which permits a party to disqualify a judge without cause. Here's the Order:

Back to Back Riders are Not Authorized and More on When to File a Notice of Appeal in Rider Cases

The Supreme Court dismissed an appeal as untimely when the defendant filed his Notice of Appeal after the District Court relinquished jurisdiction after an illegal second rider.

In State v. Urrabazo, the District Court sent the defendant on a rider, then relinquished jurisdiction but then immediately ordered a second consecutive period of retained jurisdiction on that same day. The District Court relinquished jurisdiction again at the end of the second rider and the defendant filed a notice of appeal. The Supreme Court held the notice was untimely because it was not filed within 42 days after the District Court put the defendant on the second rider!

The Supreme Court reasoned that I.C. § 19-2601(4), which permits an additional period of retained jurisdiction "after a defendant has been placed on probation," did not permit Urrabazo's second rider. It held that "I.C. § 19-2601(4) requires that a defendant be placed on probation and subsequently be found to have violated the probation before a district court may order a second period of retained jurisdiction[.]" Accordingly, the District Court had no subject matter jurisdiction to order the second rider. Consequently, the Defendant should have filed a notice of appeal within 42 days after being sent on the second rider.

I'm not sure how Mr. Urrabazo was supposed to know this since the District Court didn't know it couldn't send him on a second rider. But the Supreme Court dismisses this concern in a footnote, stating that "[w]hile it is unfortunate that the district court misread the statute and possibly mislead Urrabazo about its application" Urrabazo "provides no authority for the proposition that the filing deadline should be extended under circumstances where the statute in question clearly discloses the orders he relies upon on to be void for lack of subject matter jurisdiction."

In a similar case, the Court of Appeals recently dismissed an appeal from an order relinquishing jurisdiction, again for an untimely notice of appeal.

In State v. Ward, the defendant was sent on a rider. The District Court lost jurisdiction after 180 days but did not hold a rider review hearing until the 188th day. The notice of appeal was filed 42 days after the hearing but 50 days after the District Court lost jurisdiction. Thus, the notice of appeal was untimely.

This problem could have been avoided had the attorney filed the notice of appeal right after the rider review hearing instead of waiting the entire 42 days. There is no reason to wait the entire time if you know you're going to file a notice of appeal. Further, I guess we now need to calendar the Notice of Appeal for no later than 222 days (180 + 42) after our client is sent on a rider, unless, of course, he is sent on one of the new 360 day riders.

To read the Urrabazo opinion:

To read the Ward opinion:

Wednesday, December 15, 2010

You Can't Steal Something From Someone Who Doesn't Own It.

That self-evident proposition was reaffirmed in State v. Bennett, wherein the Court vacated a conviction for grand theft. The tricky part was figuring out who was the owner.

Bennett purchased a travel trailer from LeFave, then moved out of state with the trailer but without fully paying for it. Bennett and LeFave had an agreement that Bennett could take possession of the trailer and would make payments. LeFave, however, did not keep a security interest in the trailer. Bennett was later charged with grand theft under I.C. §§ 18-2403(1) and 18-2407(1)(b) and with being a persistent violator. A jury found Bennett guilty of grand theft and he later pleaded guilty to the persistent violator allegation.

The Supreme Court vacated the conviction. It reasoned that in order for Bennett to have committed the crime, "LeFave must have been the 'owner' of the trailer" because I.C. § 18-2403(1) states that: "A person steals property and commits theft when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof." (Emphasis in original.) An "owner" is "any person who has a right to possession thereof superior to that of the taker, obtainer or withholder." Therefore, the State was required to prove LeFave had a possessory right in the trailer superior to Bennett's right to possess.

However, since LeFave delivered the trailer to Bennett without retaining any legally supported secured interest, it was Bennett who had the superior possessory right. Thus, LeFave was not the "owner" of the trailer under I.C. § 18-2403(1) and the evidence was insufficient to convict. As an added bonus, the persistent violator conviction was also vacated.

This case is a good reminder to not assume anything when you're putting together a defense. Interestingly, the defense at trial was different from the Supreme Court's reasoning. Bennett argued that there was insufficient evidence that the amount owed on the trailer was over $1000, thus conceding a petit theft. (Luckily, the sufficiency claim was reviewable on appeal even under State v. Perry because Bennett's unwaived constitutional right to have the state prove every element of the offense beyond a reasonable doubt was plainly violated.)

Congratulations to Heather Crawford and Sara Thomas from SAPD!

The opinion is here:

Substitute Opinion in Perry

In October I asked the question What Does "Shall Not Be Given Retroactive Application" Mean?, wondering what that phrase in State v. Perry meant. Perry, you might recall, is the case which makes it more difficult to successfully raise unobjected to errors on appeal. (In short, the Court held that "where an error has occurred at trial and was not followed by a contemporaneous objection, such error shall only be reviewed where the defendant demonstrates to an appellate court that one of his unwaived constitutional rights was plainly violated. If the defendant meets this burden then an appellate court shall review the error under the harmless error test, with the defendant bearing the burden of proving there is a reasonable possibility that the error affected the outcome of the trial.")

My question was answered in the substitute opinion issued in Perry last week and it turns out that no retroactive application means that the "clarified standards shall be applied to all cases not yet final on direct review." So, if your case is on direct appeal, the "clarified standards" apply even if your case was completed in the district court before Perry was decided.

To read the substitute opinion click here: