*1 concerning a photo- especially regards dock’s books and to entries allegedly who then copied ledger opportunity sheet and transmitted it also had no Serrato. Curiel Mingo was not brought lay ledger forth to was even the ascertain whether this proper foundation for the Ex- admission of Mingo. sent For these shortcom- sheet hibit K. The testimony accountant’s should above, the ings given and for the reasons also have required been to authenticate the judgment trial court erred and the should ledger sheet Mingo. as the one sent Ac- be reversed. cording to (E. McCormickon Evidence 219§ Cleary 1972), ed. is generally held business rec-
“[i]t may
ords be authenticated the evi-
dence of one familiar with the books of concern, super- as a custodian or
visor, who has not made the record made, seen it writing that the offered actually part of the records of the busi- Idaho, Plaintiff-Respondent, STATE of (citations omitted) ness.” at 545. RAWSON, Sidney R. Obendorf, In Isaacson v. Defendant-Appellant. this Court held that it weis error in paternity proceeding to ad- No. 12843. mit blood test requiring results without Supreme Idaho. Court of accompanying testimony expert who performed the tests. This Court 581 P.2d July at 355 said:
The essence of the hearsay rule is a
requirement testimonial assertions subjected to the test of cross-ex- theory being
amination.
many possible deficiencies, suppressions, error, untrustworthiness,
sources of
which lie underneath the bare untested witness,
assertion of be best
brought light exposed by the test Wigmore, cross-examination. 5 Evi- (Chadbourn 1974).
dence 1362 rev. unsworn, report,
blood test an out-of-
court written expert statement of an con-
cerning possible paternity ap-
pellant, giving was admitted without
parties opportunity to examine
expert who made the tests as to his com- him,
petency, methods used relating
other reliability factors to the Respondent
the test. no established
foundation for the admission of the re-
port excep- of the numerous
tions to the hearsay rule. present case,
In the Curiel was denied the
opportunity to cross-examine the account as preparation sheets, ledger *2 &
Peter D. McDermott of McDermott McDermott, Pocatello, defendant-appel- for lant. Gen., Leroy, Atty. E. Lynn
David H. Thomas, Deputy Attys. Thompson, P. Mark Gen., Boise, plaintiff-respondent. for SHEPARD, Justice. Chief Sidney This defendant is an year Rawson from a term sen- four plea imposed after he entered guilty to for- a violation of I.C. § gery. We affirm. 8, 1977, Sidney August
On the defendant charged forgery, Rawson was with a viola- subsequent- 18-3601. He was ly arraigned in court en- district where he plea charge tered a guilty presentence investigation report or- dered. judge proceedings
At the past noted that the defendant’s record of flagrant disregard offenses indicated unwilling- the law or in the alternative him- subjective ness to exercise control of with self so he become involved didn’t de- the law. The determined that was not a suitable candidate for recognized fendant. Standlee Court the dis- probation and that the court’s efforts were tinction as follows: better directed protection society. “A away pun- does with both the Thus, rather than sentence Rawson to an finding ishment and the effects of a sentence under 19- guilt. A diminishes the commutation 2513, the district court judge exercised his *3 sentence, severity g. of a e. shortens the discretion under I.C. § and sen- punishment. term of nei- A does tenced Rawson year to a four fixed term. ther things. parole merely of these A Defendant-appellant Rawson’s sole con- party part allows the serve convicted tention on is that the fixed term of his sentence under conditions other sentence statute of I.C. 19-2513A consti- § than penitentiary. par- those of the The tutes an usurpation unconstitutional by the ty ‘pardoned’ is not nor is guilt, of his legislative department powers of the ex- portion He of the sentence ‘commuted.’ ecutive department. Rawson is still au- supervision under the the legislative department, through the en- subject thorities and of his revocation actment of the statute, fixed term sentence parole should he the conditions violate has attempted to improperly restrict the Thus, thereof. we find that is department’s executive power pardons, over legislative within the scope of establish- commutations, paroles. He asserts that ing punishment suitable for the various grants power Constitution the crimes.” At at 781. pardon, commutation, and parole exclusive- ly to the department Thus, executive pardon pow- and that the and commutation such an attempt to limit powers these vio- granted pardons ers in Art. to the board of lates the separation powers provision IV, 7 sepa- of the Idaho Constitution are § II, found in Art. § the Idaho Constitu- pa- parole. rate from the function of The tion. provided role function for in that article of the State, Constitution. Standlee v. P.2d this Court addressed a simi- assessing appellant’s the constitutional lar constitutional challenge to another stat- challenge to the fixed term sentence stat- ute, I.C. 20-223. provides That section ute, necessary it is the current to consider person that a serving a sentence for certain statutory sentencing scheme in Idaho. A enumerated crimes shall not be released on may felony defendant convicted of a having before served at least one- sentenced either to an indeterminate sen- third of the sentence. Therein the defend- or, tence under 19-2513 as an alterna- I.C. § ant-appellant argued Standlee sentence, the tive to an indeterminate § 20-223 separation violated the court, discretion, may in its the sentence provision of the Idaho Constitution on the offender to sentence under I.C. a fixed term grounds IV, that Art. granted only the 19-2513A. department (board executive corrections) power of determining parole. The only had years For a number of Court in rejected Standlee argument pro The statute. indeterminate sentence IV, and held Art. apply 7 does not sen genitor of the current indeterminate parole function. H.B. was enacted in 1909. tence statute Although Laws 82. 1909 Idaho Sess. The Standlee initially Court noted that law several amended this IV, premise years, times over the the basic pardons “shall have to remit would sentence statute forfeitures, fines indeterminate grant and to commu- the same. appear to have remained pardons tations and after conviction and ” sentencing judgment. theory underlying indeterminate supplied.) . . . (Emphasis The Court found cannot determine that the commutation and that a pardon imprison proper length referred to in Constitu- in advance tion did not' include he because ment to rehabilitate offenders
3H (2) than the years and not more predict prison- of a two cannot what the course said felo- prison will law for provided er’s reformation and attitude in maximum It of im- period ny-” be. is theorized that
prisonment,
hospitalization,
like a
Thus,
sentencing scheme
current
after,
before,
is best
determined
admis-
discretion,
Idaho,
Rubin,
sion to the
The Law
institution. S.
either an
felon to
the convicted
sentence
of Criminal Correction 135
term
or to a fixed
sentence.
the indeterminate sen-
statute, provides
tence
term sen-
that the fixed
Rawson asserts
“19-2513.
Indeterminate sentence.—
is unconstitutional
I.C. 19-2513A
minimum
imprisonment
precludes
theory that
that section
on the
the penitentiary
provided
heretofore
commuta-
receiving
him from
law
punishment
felonies,
correctly
of his
*4
each
period
imprison-
minimum
of
IV,
points out that Art.
ment
felonies,
for
hereby is abolished.
provides that
specifically
Constitution
any person
Whenever
is convicted of hav-
power
with the
pardons
board of
is vested
ing
shall,
felony,
committed a
the court
in all
grant pardons
and commutations
sentence,
unless it shall commute the
sus-
state, except
against the
cases of offenses
pend or
judgment
withhold
and sentence
impeachment.
or
treason
conviction on
grant
or
probation,
provided
chap-
as
by
as
We do not construe I.C.
19-2513A
19,
Code,
ter 26 of title
Idaho
or
it
unless
pardons
from
prohibiting the board
impose
shall
provid-
death
as
commutation,
granting
or
to an
pardon
a
law,
by
ed
sentence such offender to the
a fixed term. We
offender sentenced to
custody of the state board of correction
any
that
has not stated
facts
note
time,
for an
period
but
indicating
actually
he has
been denied
that
stating
fixing
and
judgment
in such
commutation,
any-
a pardon or
nor is there
sentence a maximum term which term thing
indicating
us
the record before
shall
period
be for a
of not
than
less
two
position
the board of
taken the
pardons has
(2) years
exceeding
nor
provided by
that I.C.
the board
prevents
19-2513A
therefor,
law
judgment
and sentence
pardon
a
or commutation of
granting
given
accordingly, and such sen-
tence shall be known as an indeterminate
statutes,
construing
general
it is
sentence; provided, however, that the en-
ly presumed
legislative acts are consti
actment of this act shall not affect the
tutional and that the state
indictment, information, prosecution, tri-
powers.
acted within its constitutional
al, verdict, judgment,
punishment
or
State,
175,
Idaho
525 P.2d
Worthen v.
96
any
committed,
felonies heretofore
all
but
(1974);
Idaho
Tax
957
Evans v.
State
laws now and
relating
hitherto in effect
Comm’n,
54,
(1972);
95
pardon legisla- must determine whether the Idaho powers commutation pardons prohibit which are set forth in Art. ture intended to IV, of the Idaho to a Constitution. The those offenders sentenced pardon sep- generally, and commutation are fixed term. Local 1494 See arate power and distinct from grant Firefighters City the Int’l v. Ass’n of d’Alene, provided Coeur 99 Idaho 586 P.2d IV, Lewiston, (1978); City 93 Ida- § 7 Idaho Constitu- Jorstad v. tion. (1969); Messenger solely § 19-2513A is intended ho 456 P.2d limit Burns, and does not
restrict either the or com- If we construed I.C. § mutation. section, was allowing parole, as which Although directly appel- raised clearly to indeter enacted as an alternative herein, lant some discussion is warranted as nu rendered sentencing, minate would be to whether I.C. 19-2513A actually construction, there gatory. Under such a prohibit intended to of an of- would between an indeter be no distinction fender sentenced to a fixed term. That minate sentence and the fixed term sen section simply provides that the tence. The offender would be discretion, may sentence the offender to the pardon, commutation entitled to receive custody of the state board of corrections for parole regardless whether he is sen of time. specific There is no term. tenced to an indeterminate or fixed *5 And, parole. reference to as in noted to legislature We doubt that the intended Standlee, supra, parolee the does remain meaningless enact a statute. This Court under the “supervision” of the state board statutory general adheres to the rule of of parole. correction while on statutory provision will construction that a deprived potency of its if a reasona not be
Arguing in favor of a construction of I.C. possible. ble alternative construction parole that prohibit would not Yanke, Idaho, P.2d 85 Maguire v. is the parole may fact be available (1978); Gibbs, Sampson v. supra; v. State despite the lack of an indeterminate sen- (1963); Layton, 86 Idaho tence statute. thought Parole is often to be 791, 97 County, Bel v. Benewah and, inherent in therefore, not available under a determi- However,
nate sentence statute. this belief addition, language of In the clear entirely justified. Parole is not nec- legislature the statute the indicates essarily precluded simply because the of- ob preclude intended to an offender from fender is sentenced under a determinate or taining parole sentenced to a fixed when definite sentencing legislature statute. term under 19-2513A. That section I.C. § adopted Idaho’s first indeterminate sen- in provides that an alternative to an “[a]s However, tence statute in 1909. a statute . . the determinate sentence authorizing system parole a was first of discretion, may sentence the offender earlier, years ten enacted in 1899. H.B. No. of correc- custody to the of the state board 12, 1899 Idaho 10. the case Sess. Laws .” a of time . . . tion for Prout, of In re P. 275 Idaho (Emphasis supplied.) The use of the word specifically recognized this Court the “custody,” light legislative in of the obvious viability despite of system a in Idaho to create an indetermi- intent alternative to the fact there was no “indefinite or indeter- sentencing, nate leads to the conclusion minate sentence” available in Idaho at that legislature the intended that an offender time. to a fixed term be held in con- However, imprisonment state pa- by finement or the potential availability the of the role of corrections for the duration of under some determinate sentence stat- board of correc- fixed term The board dispositive utes is not of the issue before us custody be- statute, of the offender construing in this we tions retains case. In this direction, control, cause it is vested with board is simply charged the of corrections with management penitentiaries of of the laws implement the to those enacted state, subject pre- the by legislature regarding the limitations the those func- by legislative However, scribed law. We tions. find the circumstances under purpose by of the was which are exercised fixed term sentence the functions to be prohibit state board of corrections are to be of to certain prescribed by legis- offenders. the laws enacted State, supra. lature. v. See Standlee Our construction of I.C. 19-2513A State, supra, Standlee Court leads us to Rawson’s final contention on X, addressed the issue whether Art. 5§ appeal. such limita precludes leg- the legislature enacting from unconstitution islation restricting the board corrections’ ally infringes upon powers granted ex Therein, we held that I.C. clusively department executive prohibited which an offender (board corrections) X, in Art. 5 of the receiving parole until he had at served Constitution. That article least one-third of the X, conflict with Art. 5 of the Idaho Con- prisons “§ State over.— —Control stitution. The Court found that state shall establish a limitation on the board’s function nonpartisan board known as the was within authority state correction, board and to consist prescribe and duties of three members appointed by gov- state board of corrections as mandated ernor, one member years, for two one X, the Idaho Constitution. member for years, four and one member The current years. statutory sentencing for six scheme appointment After the the first Idaho allows the court board the to sentence term of each member appointed convicted felon custody of the board years. be six This board corrections for an indeterminate control, shall have the direction man- time or in the agement § 19-2513 penitentiaries *6 alternative, custody state, board employees their and properties, and corrections for a fixed time under probation adult parole, and with such Only I.C. the fixed 19-2513A. under § compensation, powers and as may duties precluded term sentence is offender prescribed by law.” obtaining parole. The board of cor- Appellant that because have control rections continues to exclusive X, Art. control, confers § direction probation parole over adult and those management and penitentiaries provid- where has situations probation of adult parole upon e., available, ed by parole law that is i. corrections, where the offender is to an sentenced inde- may not enact a fixed term statute which terminate sentence under I.C. 19-2513. § prohibits parole, and every convicted We statutory hold the limitation on felon must be custody sentenced found in I.C. 19-2513A is § not violative the board of corrections for an indetermi- X, Art. 5 of the Idaho Constitution. nate of time. We affirm the decision of the district disagree We with Rawson’s contention court. that I.C. 19-2513A constitutes an uncon- infringement stitutional on BISTLINE, JJ., MeFADDEN and concur. the state board of corrections. initially We BAKES, Justice, specially: concurring X, note its own language Art. 5§ clearly reveals that the board was never This is an from a criminal sen- control, intended to have unfettered di- plea guilty. tence imposed after The management rection and penitentiar- sentence,’ majority affirms that and I con- or probation ies adult cur with that affirmance. decision,
Having made that I think the HOWARD, Claimant-Appellant, majority only has which is decided issue Ellen P. appeal. in this This not before the Court declaratory judgment action to determine EMPLOYMENT, OF DEPARTMENT act, sentencing whether the term fixed Defendant-Respondent. 19-2513A, prohibits either the Board of No. 12988. granting parole any Corrections from act, imposed pursuant or Idaho. Supreme Court of whether the act violates the constitutional July powers of the Board of found in Corrections Constitution, 7, of Art.
separation powers provisions of. 1, of is this'a the Idaho Constitution. Nor , corpus proceeding
habeas in which de- Board of alleging
fendant is that the Cor- solely for the
rections has denied him pursuant
reason he was sentenced act, term 19-
the fixed Accordingly,
2513A. that the Court all regarding constitutionality today
said
of I.C. 19-2513A and the conclusion that prohibits
that section the Board of Correc-
tions from defend-
ant sentenced to a term sentence un- dicta, and
der that act is obiter would best properly
be left until that issue is before
the Court. majority's Board conclusion that the
of Corrections a defendant pursuant to the fixed term sen- only act is not an issue which Court, may very
before the but their dicta wrong. finally
well be When that issue is decision,
before the Court for it will now be
very objectively difficult for this Court *7 gratuitous that issue in view of the on that
pronouncements which it has made
subject case.
DONALDSON, J., concurs.