State v. TorresState v. Torres
- Reporters:
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- Before:
- Burnett
This is an appeal from an order denying a motion to reduce a sentence under I.C.R. 35. The motion was submitted by Robert Torres after he received an indeterminate sentence of twenty-four years for rape. On appeal he has presented two sets of issues: (1) whether the sentence was excessive and was entered upon an inadequate presentence report; (2) whether the judge who denied the Rule 35 motion abused his discretion by refusing to modify the sentence and by refusing to consider a social worker’s report offered in support of the motion. For reasons explained below, we reject Torres’ challenge to the sentence and presentence report, but we vacate the order denying the Rule 35 motion.
The judgment of conviction for rape, which included the sentencing order, was a final judgment for the purpose of appeal. When the judgment was entered, the forty-two day appeal period allowed by I.A.R. 14 started to run. No motions affecting the judgment were filed during this period. The time for appeal expired before Torres sought reduction of the sentence under Rule 35. Consequently, we lack jurisdiction to entertain, in this appeal, Torres’ challenge to the sentence as originally imposed. State v. Hirshbrunner, 105 Idaho 168, 667 P.2d 271 (Ct.App.1983). A fortiori, we have no occasion to examine Torres’ attack upon the adequacy of the presentence report.
We turn to the second set of issues, relating to disposition of the Rule 35 motion. The State has raised a threshold question as to whether the district court had jurisdiction to act on the motion. Rule 35 provides in part that “[t]he court may reduce a sentence within 120 days after the sentence is imposed____” During the 120-day period in this case, Torres sent the district judge a letter specifically requesting a “Rule 35 Sentence Reduction.” New counsel was appointed for Torres, and the attorney later filed a formal, “amended” motion after 120 days had elapsed. The State now argues that the initial letter was not cognizable as a Rule 35 motion and, therefore, that the subsequent “amended” motion was time-barred. We disagree.
An informal letter from a defendant, seeking reconsideration of his sentence, implicitly has been held to meet a similar 120-day deadline prescribed by
The State further contends that even if Torres’ motion was timely, the district court lost jurisdiction to rule on it after the 120-day period had expired. Again, we disagree. In the federal system, the 120-day time limit for filing
We are persuaded that this approach is better reasoned than the jurisdictional cutoff urged by the State. Therefore, we hold that a district court does not lose jurisdiction to act upon a timely motion under
We now return to Torres’ contention that his
We believe the judge unduly narrowed his own discretion. On the hearsay question, it is well established that a sentencing hearing is not a trial. The strict evidentiary rules used to determine a defendant’s guilt are not rigidly applied during sentencing proceedings in Idaho.
State v. Pierce,
100 Idaho 57, 593 P.2d 392 (1979). A judge may admit hearsay statements so long as the parties are accorded the right to rebut them.
E.g., State v. Moore,
93 Idaho 14, 454 P.2d 51 (1969). We believe the same rule logically applies to
We similarly believe the district judge was mistaken when he considered only the information earlier presented to the sentencing judge. A motion to reduce an otherwise lawful sentence is addressed to the sound discretion of the judge who rules on it.
State v. Arambula,
97 Idaho 627, 550 P.2d 130 (1976). It is within that judge’s discretion to hear testimony or argument on the motion.
State v. Arambula, supra.
The motion essentially is a plea for leniency which may be granted if the sentence originally imposed was, for any reason, unduly severe.
State v. Lopez,
106 Idaho 447, 680 P.2d 869 (Ct.App.1984). It would ill serve the purpose of a
In this case we do not know, and we decline to speculate, how the social worker’s report on Torres might have affected the judge’s evaluation of the twenty-four year sentence, if the report had been considered. We will not substitute our view of a case for the soundly exercised discretion of a district judge on the choice of an appropriate sentence. Accordingly, when a judge unduly narrows the scope of his discretion, by focusing upon improperly limited information, the proper appellate response is not to usurp such discretion by exercising it ourselves; rather, the proper course is to remand the case for reconsideration.
We conclude that this case should be reconsidered in light of all pertinent information, including the social worker’s report. Consequently, we need not decide whether denial of the
The order denying Torres’ motion under