274 P.3d 1284
Idaho Ct. App.2012Background
- McGiboney was convicted of robbery, two counts of aggravated battery, and burglary, with firearm-use enhancements on the aggravated battery and burglary; the jury also found the use of a firearm during the robbery; district court imposed concurrent sentences including a life term for robbery and 30-year and 25-year terms for aggravated battery and burglary respectively, each with firearm enhancements; the court did not make a finding on indivisibility under I.C. § 19-2520E; McGiboney appealed the dual firearm enhancements and the overall sentence; Peregrina governs division/indivisibility and Apprendi limits; the case was remanded for a divisibility finding and possible resentencing; the State did not challenge the felon-in-possession conviction or its sentence on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether two § 19-2520 firearm enhancements can apply | McGiboney argues two enhancements violate § 19-2520E if offenses arose from the same indivisible conduct | McGiboney contends the offenses arose from an indivisible course of conduct and thus only one enhancement applies | Remanded for a divisibility finding; not resolved on the record here |
| Whether the district court must expressly determine divisibility under § 19-2520E | State contends Peregrina controls and no Apprendi issue; lack of explicit finding is remediable | McGiboney preserved error for appeal; failure to decide is reversible | Remanded to make explicit divisibility/indivisibility finding under § 19-2520E |
| Whether the robbery sentence is excessive given remand | Not expressly argued here; focus is on enhanced sentences | Robbery sentence should be reviewed after remand as to enhancements | Robbery sentence affirmed for now; enhanced sentences to be reconsidered on remand |
Key Cases Cited
- State v. Peregrina, 151 Idaho 538 (Idaho 2011) (remanded to address divisibility under § 19-2520E; not subject to Apprendi; divison issue remanded for factual finding)
- State v. Johns, 112 Idaho 873 (Idaho 1987) (divisibility is a question of fact under § 19-2520E)
- State v. Perry, 150 Idaho 209 (Idaho 2010) (fundamental error review; Apprendi does not apply to divisibility finding per Peregrina)
- State v. Reyes, 139 Idaho 502 (Ct. App. 2003) (free review of statutory application and construction)