State v. Timothy Dean Livingston
Background
- Livingston was convicted in 2012 of identity theft (five-year unified sentence, three years determinate) and in 2015 of possession (five-year unified sentence, one year determinate) with sentences ultimately suspended and probation imposed.
- Probation was revoked in both matters in 2016; the original sentences were imposed, but the 2015 sentence was modified under I.C.R. 35 to two years unified, one year determinate, consecutive to the 2012 sentence.
- At the disposition hearing on the probation violations, Livingston (through counsel) orally asked the court to "consider restructuring" or reduce the sentences if probation were revoked.
- The district court treated that oral request as a Rule 35(b) motion and denied later-filed written Rule 35(b) motions by Livingston as successive.
- Livingston appealed the denial; the court of appeals reviewed whether the district court had jurisdiction to consider the successive Rule 35(b) motions.
Issues
| Issue | Plaintiff's Argument (Livingston) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether an oral request for reduction at a disposition/revocation hearing counts as a Rule 35(b) motion | The oral request was part of the revocation/continuation hearing and not a Rule 35(b) motion because Rule 35 applies after revocation | The oral request constituted the defendant's one permitted Rule 35(b) motion, so a later written motion was successive and jurisdictionally barred | The court held the oral request was a Rule 35(b) motion; the district court lacked jurisdiction over subsequent motions |
| Whether Rule 35(b) limits a defendant's due process right to be heard on sentencing at revocation | Livingston: he had a due process right to be heard on sentence reduction at the revocation/disposition hearing that Rule 35 cannot curtail | State: Livingston was heard at the disposition hearing; Rule 35 governs requests for reduction and limits successive motions | The court held no due process violation: Livingston was heard; Rule 35 applies and bars a second motion |
| Whether Hurst should be overruled or is distinguishable | Livingston argued Hurst is inapt or outdated and should not preclude his later motion | State relied on Hurst to treat the oral request as the single Rule 35(b) motion permitted | The court affirmed Hurst, finding it controlling: oral requests can constitute the single allowed Rule 35(b) motion |
| Whether the district court abused discretion in denying the Rule 35(b) motion on the merits | Livingston argued merits denial was an abuse of discretion | State argued court acted within Rule 35 and discretion | Court did not reach the merits because of lack of jurisdiction to consider the successive motions |
Key Cases Cited
- State v. Jones, 140 Idaho 755, 101 P.3d 699 (Idaho 2004) (standard of review for jurisdictional questions; can be raised anytime)
- State v. Hanington, 148 Idaho 26, 218 P.3d 5 (Ct. App. 2009) (scope of review when a sentence is ordered into execution after probation)
- State v. Hurst, 151 Idaho 430, 258 P.3d 950 (Ct. App. 2011) (oral request for leniency at retained-jurisdiction/review hearing constitutes a Rule 35(b) motion)
- State v. Clontz, 156 Idaho 787, 331 P.3d 529 (Ct. App. 2014) (noting Hurst may chill frank discussion at revocation but declining to disturb Hurst's rule)