Idaho Cases February 08, 2023: State v. Gilbert

Case Description

1

UNPUBLISHED OPINION

Appeal from the District Court of the Second Judicial District, State of Idaho, Nez Perce County. Hon. Mark T. Monson, District Judge.

Order revoking probation, affirmed.

Eric D. Fredericksen, State Appellate Public Defender; Kimberly A. Coster, Deputy Appellate Public Defender, Boise, for appellant.

Hon. Raúl R. Labrador, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent.

Before LORELLO, Chief Judge; GRATTON, Judge; and BRAILSFORD, Judge

PER CURIAM

Colby L. Gilbert pled guilty to lewd conduct with a minor. I.C. § 18-1508. In exchange for his guilty plea, an additional charge was dismissed. The district court sentenced Gilbert to a unified term of fifteen years, with a minimum period of confinement of five years, but, suspended the sentence and placed him on probation. Subsequently, Gilbert admitted to violating the terms of the probation, and the district court consequently revoked probation and ordered execution of the original sentence. Gilbert appeals, contending that the district court abused its discretion in revoking probation and not granting his "request for retained jurisdiction when it revoked probation" in order to give him "an extended period to demonstrate that he is capable of acquiring

2

the tools he needs to correct, his thinking, to gain insight to his conduct, and to manage his behaviors. Gilbert asks this Court to "vacate the order revoking probation and remand his case to the district court with directions to either reinstate his probation or order a rider."

It is within the trial court's discretion to revoke probation if any of the terms and conditions of the probation have been violated. I.C. §§ 19-2603, 20-222; State v. Beckett , 122 Idaho 324, 325, 834 P.2d 326, 327 (Ct. App. 1992); State v. Adams , 115 Idaho 1053, 1054, 772 P.2d 260, 261 (Ct. App. 1989); State v. Hass , 114 Idaho 554, 558, 758 P.2d 713, 717 (Ct. App. 1988). In determining whether to revoke probation a court must examine whether the probation is achieving the goal of rehabilitation and consistent with the protection of society. State v. Upton , 127 Idaho 274, 275, 899 P.2d 984, 985 (Ct. App. 1995); Beckett , 122 Idaho at 325, 834 P.2d at 327; Hass , 114 Idaho at 558, 758 P.2d at 717. The court may, after a probation violation has been established, order that the suspended sentence be executed or, in the alternative, the court is authorized under I.C.R. 35 to reduce the sentence. Beckett , 122 Idaho at 325, 834 P.2d at 327; State v. Marks , 116 Idaho 976, 977, 783 P.2d 315, 316 (Ct. App. 1989). The court may also order a period of retained jurisdiction. State v. Urrabazo , 150 Idaho 158, 162, 244 P.3d 1244, 1248 (2010).

A decision to revoke probation will be disturbed on appeal only upon a showing that the trial court abused its discretion. Beckett , 122 Idaho at 325, 834 P.2d at 327. In reviewing the propriety of a probation revocation, the focus of the inquiry is the conduct underlying the trial court's decision to revoke probation. State v. Morgan , 153 Idaho 618, 621, 288 P.3d 835, 838 (Ct. App. 2012). Thus, this Court will consider the elements of the record before the trial court relevant to the revocation of probation issues which are properly made part of the record on appeal. Id.

When we review a sentence that is ordered into execution following a period of probation, we will examine the entire record encompassing events before and after the original judgment. State v. Hanington , 148 Idaho 26, 29, 218 P.3d 5, 8 (Ct. App. 2009). We base our review upon the facts existing when the sentence was imposed as well as events occurring between the original sentencing and the revocation of probation. Id.

The primary purpose of a district court retaining jurisdiction is to enable the court to obtain additional information regarding whether the defendant has sufficient rehabilitative potential and is suitable for probation. State v. Jones , 141 Idaho 673, 677, 115 P.3d 764, 768 (Ct. App. 2005). Probation is the ultimate goal of retained jurisdiction. Id. There can be no abuse of discretion if

3

the district court has sufficient evidence before it to conclude that the defendant is not a suitable candidate for probation. Id.

Applying these standards, and having reviewed the record in this case, we cannot say that the district court abused its discretion in either revoking probation or in ordering execution of Gilbert's sentence. Therefore, the order revoking probation and directing execution of Gilbert's previously suspended sentence is affirmed.