State v. Greene
643 P.2d 1067
Idaho
1982
Check Treatment

*1 modification is not limited to the time

subsequent to the application. applies It pro

nunc tunc as of the time of re-

marriage unpaid to all alimony. To hold

otherwise would enable a woman to remarriage

conceal her thereby ob-

tain alimony from her former husband living

while she is spouse.” with a new

N.E.2d at 854 (emphasis added).

Not asked to overrule McHan and Des-

pain, so, we are not inclined to do and on

the contrary, are of the view that sound

public policy served by adhering to it. legislative

Should the sense be provi-

sion be made for those involving rare cases conditions,

extraordinary as discussed in Co- Atlass,

hen and then it may appropri- take

ate Any action. misunderstanding

McHan Despain be, should hopefully, opinion.

clarified suggested As

Despain, good housekeeping suggest recipient remarries, when a alimony

an appropriate fact, order recognizing that

and the cessation of the alimony obligation,

should be entered.

The orders of the courts below are re-

versed, with directions to enter an appropri-

ate order in accordance with the views

herein expressed.

Costs to appellant.

BAKES, J., McPADDEN, C. DON- SHEPARD, JJ., ALDSON and concur. Gen., Lynn David H. Leroy, Atty. E.

Thomas, Gen., Hurlbutt, Guy Sp. Sol. G. Gen., Boise, Deputy Atty. plaintiff-ap- pellant. Hohler, Boise, Tway

Anton Tway, & for defendant-respondent. Idaho, STATE of Plaintiff-Appellant, BAKES, Justice. Chief GREENE,

Daniel Defendant-Respondent. respondent defendant Greene was November, 1976, convicted in on two counts No. 13591. of illegal possession of drugs and was sen-

Supreme Court of Idaho. I, tenced not years to exceed five on Count II, to exceed years three on Count April retaining jurisdiction days. the court for 120 The court assessed costs and fines $2,500 on each count in the event that defendant received end of probation at the *2 898 13) jurisdictional authority day period. appeals That conviction was hear Greene, State v. courts,”

affirmed appeal. on from of the “any 100 decision district 464, (1979). Idaho 140 600 P.2d Subsequent respondent defendant Greene nevertheless appeal, argues decision on Greene made a that to aside the district court’s set 5, motion for pursuant 1979, reduction sentence order of December would be to to I.C.R. 35. trial reimpose year The court the five three obtained an updated presentence investigation imposed report, original judgment. Defend- and after a entered an order ant asserts an dated that this constitute 5,1979, suspending December appeal the execution enhancement of a sentence on which prison term, of the the defendant this has no au- placed defendant on claims Court probation thority assuming for five and as a condition to do.1 Even that we years, of probation $2,500 a fine of have review and enhance a on count, each paid appeal, within six on we have months. defendant’s sentence court, The appeals state the trial reviewed before the trial court’s order the record 5, 1979, dated applying December standard of suspending the the same review sentence, arguing apply that action is in this case that we would in review- too lenient. ing appeal by We affirm. a criminal on sentence Birrueta, defendant, State v. 915, 101 Idaho jurisdiction As to Court’s this Cotton, State v. (1981); 623 P.2d 1292 100 5, hear such appeal, 9, an Art. of the § 573, v. (1979); 71 Idaho 602 P.2d Idaho provides Constitution that “the Su Seifart, 321, (1979), 100 597 Idaho P.2d 44 preme jurisdiction Court shall have to re we conclude trial court that the would not view, upon appeal, any decision of the dis entering have abused its discretion its ” courts, trict judges or the thereof .... 5, order dated December 1979. By provision we jurisdiction. have Lewis, State v. 743, SHEPARD, JJ., con- DONALDSON Berlin, (1975); State v. 225, 95 506 cur. (1973). The order of the trial MeFADDEN, J., concurs in result. 5, 1979, court suspending dated December the execution placing of sentence and Justice, BISTLINE, concurring specially. appealable defendant on by the view, Entertaining a different somewhat state as of right a matter under I.A.R. questions presented appeal I believe the 19-2801, 11(c)(6) and I.C. rather than as a importance are to justify of sufficient discretion, Lewis, matter as in State v. separate opinion. alleges The State supra, Berlin, supra. State v. ap “by the trial court abused its discretion peal is properly before us. which was too lenient imposing a sentence

Going to merits of the state’s in view of the and circumstances of charges argument on it appeal, is asserted by the the case.” State’s brief devel- Some state that ops underlying the trial court abused its discre that conten- philosophy mind, tion in entering 5, exhaustively, my its order dated December tion rather 1979, in which it with suspended execution of most which I shall deal commendably, the prison the defend A. The other main conten- Part court, ant on a five year probation imposing following a fine tion is that the trial this $5,000. Recognizing this of Greene’s conviction Court’s broad Court’s affirmance Wickenhauser, 145, e.g., People Supreme Ill.App.3d recently 1. The United States 838, (1979); determined that of a criminal 30 Ill.Dec. N.E.2d 1185 enhancement State v. Henrich, (1973). sentence on not 509 P.2d does violate the double Mont. jeopardy modifying clause of the United States Since we are not Constitu- tion, sentence, DiFrancesco, to, required we are Amend. 5. United States v. defendant’s 449 U.S. 101 S.Ct. 66 L.Ed.2d 328 nor do we issue of reach the whether such courts, encountering jeopardy Several state no modification would offend the double bar, jeopardy recognized double have their au- clause of the Idaho Constitution. See Idaho See, I, thority appeal. to increase sentences on Const. Art. down, being and upon objection, important the remittitur sent there no it is granting erred in probation pursu- Greene deserving enough to of some discussion. ant a motion for reduction of else, nothing If excel- presents which I deal with in Part B. guidance lent rationale for the of sentence *3 review appeal: on A. may or not a be “Whether sentence pointed brief, As out by the State in its appeal depends part increased on in sentence imposed was not raised as “[t]he the review at rationale behind sentence by an issue either party appeal on [the first] appear the level. There and was not by considered Court.” [this] arguments two fundamental for sentence This is Equally true. true is the highly (1) appeal: modification on The sentence singular fact that the defendant has not does not meet the crime the circum- or by either motion argument challenged or case; (2) stances of the Society is the right of the State to now attack the by best an served even-handed adminis- leniency of the sentence when it did not do punishment throughout tration of the so on the appeal, first by which was taken State, requiring the appellate court to Greene. Had the objec- defendant made an work toward uniformity tion, perhaps judi- one in the nature of res involving cases similar crimes and circum- cata,1 or raised the question jurisdiction, of stances. I would think leniency that the of the sen- notes, At point correctly the State tence would likely most have been held to so, that this has yet Court not embarked on be an issue which had to have been raised an attempt uniformity to create in sen- on the first appeal judgment from the final overview, through appellate noting tences of conviction imposition of sentence— contrary,” as “some those event, or at In any not all.2 the State has compared in dissenting opinion cases the in mischaracterized the action of the district Adams, 75, v. 99 Idaho 577 P.2d 1123 court. The court did not reduce Greene’s (1978). quoted The dissent in Adams was sentence, but simply placed proba- him on proposition for the therein advanced that tion—a possibility clearly contemplated by sentences, disparity undesirable so original sentence, “[t]he which included 120 commentators, by much decried all can be days at Cottonwood. The defendant con- alleviated if the Court looks to the serious- tributes to the by confusion caused this ness categories between different of crimes mischaracterization by arguing that to re- aggravating mitigating as well as to the verse the district court would result in im- present single circumstances within a cate- posing greater and that this crime,” 79, gory of at 577 P.2d at beyond power be of this Court. 1127, disparities and the fact that create parties Both are incorrect. The asks “ ‘demoralizing only that we and anti-rehabilitative ef- granting reverse the order probation; prisoners fects on who receive harsher sen- defendant asks that we af- viewed, firm it. Thus than others in appeal comparable this does not tences situa- 82, involve sentence enhancement at all. tions.’” 99 Idaho at 577 P.2d at 1130 Dawson, (quoting Sentencing 216 The issue of sentence enhancement hav- ing briefed, however, been raised and position State’s shows inclination brief, then responded dissent, to in defendant’s and toward the views of the Adams but State, jurisdiction pursuant 1. See Kraft v. 100 Idaho 603 P.2d court retains to 19- (1979), Ramseyer 2601(4), 14(a). Query: connection with Idaho Code.” I.A.R. Ramseyer, (1977), 98 Idaho Following appeal, his first could Greene have judicial policy against “piecemeal” ap- appeal challenging filed a second his sentence peals, Am.Jur.2d, Appeal and Error 49 at do, as excessive? If he could not can the State (2d 1972). ed. challenge nevertheless it as too lenient challenge where the State did not it in the first case, 2. “In a criminal the time to file an appeal? enlarged by length is of time the district only accomplished time perceives by legislative the State at the same endeav- workability by any effectiveness and or. It is not stretch a matter ability rationale mere “depend procedure, on the some bewilderment by Court caused State’s insistence that increase as well as decrease power require.” sentences when Court exercise which it does the circumstances logic have. Nevertheless the of the (Emphasis original.) brief is power well understood: The Court’s The State contends that “[t]his when modify by reduction clearly power has the as well as increase reciprocally found excessive should include to decrease appeal,” citing sentences on ar- sen- power modify by Y, Constitution, ticle section 9 of the Idaho answer, think, tences. The so I is that 11(c)(6) Rules, Appellate Rule of the Idaho urged might now contention the State Ramirez, and State v. 203 P. *4 have had it I.C. prevailed been made when 279 In the Ramirez case landmark 19-2821 was still the law. 19- Section § Supreme modify the power Court’s to sen- clearly a keystone 2821 was to the Ramirez exhaustively up- tences was considered holdings and the State’s contention cannot however, held. Significantly, considerable supported by repealed years be a statute legislative reliance was there the law, ago. it did state Ra- When the the grant power that set in the crimi- forth it, has mirez court utilized and the Court nal code: long since to reduce continued sentences too reverse, “The [supreme] affirm may court power as- successfully now for that to be or modify any judgment appeal- order or course, sailed. the does so. Of State not do ed from proper judg- direct may the Rather, it the State seems to claim that entered, ment or order to be or direct a appellate iden- rights should have which are new trial or proceedings further defendants, a tical to those of criminal 6446; had.” (re- C.S. 19-2821 I.C. § § proposition improper which I believe is pealed 1977). proposition a properly discuss. should Such legislature, be provision suggest- That submitted as way harked all the back to dissent. I first ed the Adams do believe may the territorial legislature, upward modification of a sentence should found in 1864 original its form in the Crimi- ordinarily not be an issue on unless Act, acquired It nal Practice 487.3 its § by his sub- appeal opens the defendant the “former” a status in 1977 at the hands of ject. legislature all to the rule- responsive too making program which Court em- Court, presumed its I.C.R. has The ago. upon years barked some 10 or 12 See rulemaking power to procedural under its Sess.Laws, ch. 9. The reduce, right courts the extend to district 11, however, Rule not purport Court’s does increasing, without mention upon power to confer the over Court such The rule following appeal.4 parallels legislature sentences as the had continuous- similar rule —see Fed.R.Crim.P. federal granted ly years, it over a nor span of the important —the difference should it. In Court cannot my opinion, the congressional emanates from a federal rule lawfully power Knee, assume un- such substantive enactment. See State guise rulemaking, J., der the dis- procedural (1980) (Bistline, good purpose, this matter of increase sen- senting). I.C.R. 35 serves tences, com- assuming constitutionality, constitutionally its can feel more but I would juris- day tially pro- sentences when 120 3. Section 487 of Act executed the Criminal Practice reverse, 19-2601(4). may vided: “The af- court has been retained. I.C. § diction from, modify appealed judgment statutory provision providing firm or the for retention may, necessary day proper, during jurisdiction if order a new the 120 the district of period, mind, trial. my gives the district court imposed, or power the sentence it has to reduce legislature upon it, 9-2601(1). 4. The has district conferred as under to commute right par- suspend courts the fortable if been issued the substance of it came from for his Although upon arrest. legislature. For the same I reason be- he apprehension his will be entitled to a that, assuming lieve even was violation, hearing on his the re- inclined to enter the field of sen- marks of the trial court6 at the reduction of tences, principle for which the State eminently make it clear today doing contends better be the now that Greene will serve the sentence legislature, acting considerably with imposed. I For those reasons consider input guides more than that which often granting probation issue of the trial court’s the Court. moot, ap- as simply and would dismiss peal. however,

It here appears, following

remittitur, at which time the defendant sentence,

moved for a reduction of did not avail opportunity itself of that

to ask for an increase of sentence.5 The

failure to raise that issue in the court below

effectively precludes raising from Further,

it here for the first time. al- though the State did resist Greene’s motion for reduction of it was successful BRAUN, Appellant, Marcia *5 in that thereby presenting no is- endeavor— sue basis, for review. On that and not on constitutional or statutory COUNTY, Idaho, ADA and its Board of grounds, or the Court’s of procedure, rules I County Commissioners, Respondents. would dismiss the challenge No. 13526. leniency of the sentence. Supreme Court of Idaho.

B. April Acting under the Court’s Criminal Rule 35, however, court, the trial though leaving previous

stand its suspended exe-

cution of that sentence placed Greene probation. challenges

order, and its right that order

seems to clearly provisions fall under the 11(c)(6).

I.A.R. At oral argument we were

advised that probation Greene’s had been

violated, and that a bench warrant had just going go deputy prosecuting carelessly get 5. At the attor- out and into ney (not appeal) gets gets the author of the brief on trouble. He If he in trouble. prefacing trouble, doing; State’s remarks with the state- he knows what he’s he knows ment that “all the State intended to ask in this consequences what the are. This is not a carry through case is that the Court with the might probation case for what one call in the original February 1976,” sentence from did usual sense of the word where a “really mention that Greene had received lenient sentence under the somebody trying officer has work with circumstances,” go help get job, try out and him a to build justifies stated that “his record more than our ego, try good up their to make them feel suggestion 120-day that he be on the about themselves. This is a man who it program.” Very little more than that was said. me, knowing he knows seems to as much as law, enforcement, about the law about what 6. The trial court with care stated its reasons for is, price violating the law has to be placing probation: Greene on prepared pay price anytime he violates “Well, you way I’ll tell I see it. This way probably the law. I think that’s the best way man knows his around. He’s been one to think about rehabilitation in a case like long, or the other side long of the law from—for this.” person time. This isn’t a kind of that’s