*1
plied
findings
the rule that
based on
magistrate’s decision.
Blaser also asserts that both
magistrate district court awarding attorney fees to Nicholls.
erred
We disagree. The trial court was authoriz pursuant
ed 12-121 award rea to I.C. attorney prevailing par
sonable fees to the
ty. The no abuse record before us discloses magistrate’s discretion in so award
ing attorney fees Nicholls. A district reviewing appeal magis an from court, novo, involving
trate de a trial question attorney
should determine the appeal,
fees on stan employing the same apply awarding attorney
dards as we appeal Supreme
fees on Court. See Martin,
Futrell v. 100 Idaho (1979); Develop Minich v. Gem State
ers, Inc.,
(1979);
said, expressed its the district court belief
that the counterclaim to and the defense of ap
the action were frivolous and that the
peal pursued without foundation. We
find no error in the district court’s decision attorney
to award fees at level of
appeal.
Further, appeal on this we are left abiding appeal was
with the belief that the
brought pursued frivolously and with Martin,
out foundation. Futrell v. su See
pra; su Developers, Minich v. Gem State ; Hence, attorney
pra 12-121. fees appeal
on to this are awarded to Court
respondent. judgment of the district court which magistrate is judgment
affirmed the attorney fees to re-
affirmed. Costs
spondent. *2 Hart,
Roger
Following
spree,
the
the
S. Burdick of
Burdick &
defendant was
Healzer, Jerome,
charged
for defendant-appellant.
arrested. Defendant was
in both
and
Camas
Jerome Counties.
Jerome
Gen.,
Leroy, Atty.
David H.
F.
James
larceny
County,
charged
grand
he was
with
Kile,
Boise,
Gen.,
Sp. Deputy Atty.
for
pleaded
pickup
of
and tools. Defendant
the
plaintiff-respondent.
larceny
felony.
grand
charge,
a
guilty
sentencing judge, Judge Cunningham,
The
BAKES, Chief Justice.
length
a
of which is
imposed
sentence the
not
in the record.
Jurisdiction
reflected
appellant
plea
Defendant
West
a
entered
pursuant
for the first
was retained
guilty
charge
of
to a
of malicious destruc-
19-2601(4).
to I.C. §
$1,000
property
tion of
and
in excess of
was
sentenced to
case,
an indeterminate term in the
County
defendant was
In the Camas
Penitentiary
Idaho State
not to exceed five
in
with
charged
a three-count
information
years.
appeals
West
from that sentence
degree
and two
of
burglary
second
counts
and from the trial court’s denial of motion
a
property.
destruction
of
He
malicious
to reconsider the sentence.
guilty
count of
pleaded
to one
malicious
$1,000,
in excess of
property
destruction
The record discloses that
in
October
felony.
apparent plea bargain,
a
In an
1978 the
and
defendant
two other individu-
Judge
other
counts were dismissed.
stole
pickup
als
a
in
County
Jerome
defendant
to an in-
Kramer sentenced the
and drove it into the
The
mountains.
determinate term in the Idaho State Peni-
companion
pro-
fendant and his
thereafter
tentiary
years.
not
to exceed five
This
go
ceeded to
day spree. They
on
four
subject
appeal.
latter sentence is the
of this
broke into a privately
mining
owned
cabin
presentence investigation
in a remote
for
area
Camas
and
The
the Ca-
County
did
waived,
Upon
County
extensive damage.
later
mas
action was
and the
examination
cabin,
of the
presentence investiga-
relied on
authorities found it
be a
complete
prepared
County
shambles. Food had been con-
the Jerome
action.
sumed,
walls,
thrown
generally
all over the
The
unfavorable. The
and scat-
juvenile
tered around
cabin
record includ-
countryside.
and
defendant’s
criminal
Bedding
larceny, threatening
Blasting
petit
was strewn about.
ed convictions of
mate-
implements
rials and
telephone,
game
other
use
a fish and
mining
used in
had been taken. The
violation. The
also admitted
defendant and his
defendant
companions apparently
running away
attempted
dyna-
from home on several occa-
mite
They
juvenile.
presentence
trees.
also
while a
cut a
sions
beam
cabin,
interior of
investigator
incarceration
broke out windows
recommended
frames,
penitentiary primarily
window
because
took a chain saw
to some
property
in and
seriousness of the crime and the defendant’s
about the
cabin, including
respect
refrigerator.
persons’ property.
lack of
The chain
other
hill,
saw was
damaging
impressed
thrown down a
This
apparently
it.
recommendation
sentencing judge,
specifically
relied
who
During
day spree,
the four
the defendant
presentence investigator’s
on the
conclusion
companions
and his
damaged the stolen
“little,
that the defendant demonstrated
pickup to such an extent
it was con-
any, remorse for his actions and conduct.”
sidered a
They
destroyed
total loss.
also
nearly
lost
all of the tools which were in the
imprison
The maximum term of
pickup at the time it was stolen. The total
injury ment for the crime of malicious
cabin,
done to
pickup,
$1,000
property
years.
excess of
is five
personal
other
property was
estimated
be
18—7001.
the sentence im
Where
$12,000.
in excess of
limit,1
posed within
statutory
defendant
Although
given
given
defendant was
the maximum
sentence.
maximum permissible
number of
conjunction
under
years
18-7001,
he was
19-2513A,
I.C. §
applied
though indeterminate,
showing
the burden of
a clear abuse of
the maxi-
has
was for
part
discretion on the
mum amount of
for the of-
time allotted
Bowcutt,
property.1
g.,
court. E.
fense of malicious destruction of
into consideration. age, (2) the fact this was his first “Among guidelines those are how can felony as an conviction and his first crime you best be What is in rehabilitated. adult, crime, (3) the fact while your best interests. There also to be serious, against property was a crime into taken consideration what’s the best violence, (4) did not involve society. interests parties agree that all that West a fol- leader, lower it cannot be said “Anyway, any Judge I think is dis- that the abused discre- *4 they young turbed when have two men striking proba- against tion in the balance situation, before them in but society tion in period favor some of incarcera- you go disturbed too when out and do tion. things boys the malicious you that did. just country We can’t allow this to be run you hoodlums and demonstrated at RETAINED JURISDICTION
least for period that that time that’s Turning to West’s claim that the court exactly you what were. exercising abused its discretion in not its 19-2601(4) authority under I.C. to sus- § “[Ijt’s obvious to me that to me pend judgment the execution of and retain be the society can’t answer. I think has jurisdiction over days West for 120 while he rights peaceful its too and that’s to a was evaluated at N.I.C.I: staff N.I. existence we can obtain it.” C.I., describing in their evaluation and reha- facilities, suggested bilitation has fol- PROBATION lowing weighing in criteria favor of uti- The presentence referred to lizing jur- and 120 N.I.C.I. retained court “a stated that recommendation for “(1) conviction, isdiction: felony pref- First realistic”, probation would not be and cited (2) erable. Age (3) Property factor. —no following weighing against factors as preferable.” Judges crimes Sentenc- probation: (1) live up West’s failure to to ing According Manual 7.9 at 10. to the (2) prior probation, of a terms the fact itself, then, criteria of N.I.C.I. West was a that West was unable to maintain steady perfect candidate for treatment and evalua- (3) employment, the fact that West showed tion facility. at that Of if the staff crime, (4) little or no remorse at had N.I.C.I. concluded that no alterna- that, given employment his lack of tive other than incarceration was suitable potential, West probably be unable to West, the court its could have allowed restitution,2 (5) make benefit to jurisdiction lapse simply and West would counseling West of in a highly structured been transferred environment. The trial court was entitled necessity with no for a further court hear- recommendation, to consider this as well as ing. Ditmars, upon the facts which the recommendation (1977), P.2d based, cert. den. 434 U.S. excluding probation as a sen- 20-220; S.Ct. L.Ed.2d 793 Prior to tencing alternative. See I.C. § 32(a), making (c); the decision whether Judges Sentencing 1.C.R. juris- simply allow modify 5.2. its sentence or Manual The court was also entitled would, expire, at protection to consider deterrence and of the diction to the staff N.I.C.I. public however, excluding probation. request, provide 19- upon constitutionality sentencing appeal, considering per- is not in this and I 2. The raised ability pay join discussing son’s restitution as a factor in in not it. Court properly training characterized as containing with an evaluation the follow- school ing: programs for crime. While rehabilitative penitentiary, they may at the are available evaluation, showing
“1. Personality only atmosphere in an be undertaken strengths resulting and weaknesses in conducive to rehabilita- is itself much less prior characteristics both to his incarcera- short, pat- it is currently and his behavior tion than that at N.I.C.I. terns in crisis areas. unlikely court sent penitentiary in an effort “2. A prescription program recommend- had, it ing help various him rehabilitate himself. If programs, such as: vocational rehabilitation, release, programs and facilities job light superior work on the training, N.I.C.I., program, volunteer friend an abuse aca- at such would have been demic, group-individual counseling, psy- of discretion. From the statements chological, probation supervision, however, medical sentencing, it is evident court at handicaps, special needs and/or needs on the the court based its sentence and/or areas of concern. peniten- deterrent effect which time in the stated, Progress report might “3. tiary the areas of aca- have. As we have instruction, record-habits, terrence, demic work dis- both for the individual involved ciplinary reports, group lawbreakers, and individual potential legiti- is a and other counseling special involvement. This mate factor to into consideration in take *5 him, plans sentence; also shows release for arriving at a it is in fact entitled quality information about 19- weight. to considerable I.C. § See family relationships, employment, resi- 2521(l)(d), (e); Judges Sentencing Idaho dence, other commu- financial status and Manual 8.2 at 2-3. nity supported resources. appear a term at While it would that “4. A counselor’s evaluation. of a would have as much or more N.I.C.I. “5. A recommendation West as a term in the “deterrent” effect on Judges officer.” Sen- that the likelihood penitentiary, in the sense tencing Manual 7.9 at 11-12. would be of continued criminal behavior testing of a convicted reduced, evaluation it cannot be said as a matter of during clearly felon 120 at N.I.C.I. is sentencing judge, who had the law that the in-depth more possible and extensive than is West’s behavior and opportunity to observe presentence for a investigator. Additional- him, abused his discretion in converse with ly, investigate more time and resources to West, that, concluding exposure to the viable alternatives to incarceration are deterrent penitentiary be more of a present Finally, at N.I.C.I. the recidivism clearly days at The court than 120 N.I.C.I.4 gone through rate for those who have to make that choice. had the discretion 13.6%,3 program sug- at is N.I.C.I. Seifart, 597 P.2d v. 100 Idaho State gests majority that the vast who those Moreover, (1979). sentencing court was are counseled and released from N.I.C.I. peni- in the liberty conclude that time at have been of crime and turned from a life more of a deterrent tentiary would have society. have become useful members of than a effect on other would-be vandals N.I.C.I., Finally, the court could term at N.I.C.I. penitentiary In contrast to retribution, criminals, properly filled with hardened and has been consider the need nothing straight Judge’s Sentencing to the adds Manual 7.9 at 13. penitentiary 3. figure Some allowance this must be made for time at N.I.C.I. terms of deterrence spent engage those who in crime but subsequently The court followed term. penitentiary rate, are not The success how- apprehended. sudden concluded, however, that may ever, is still very impressive. life would have more exposure penitentiary gradual introduc- of a deterrent effect than has the Of a term at N.I.C.I. always through N.I.C.I. for a term at the end of it potential going and, blush, at first it would appear Wolfe, 633 P.2d see v. 99 Idaho HELICOPTERS, INC., (1978), being at warehoused an Ida THOMAS Plaintiff-Respondent, corporation, penitentiary undoubtedly extracts more of ho society’s pound of flesh time at than does v. I conclude N.I.C.I. RANCHES, partnership; SAN TAN as deciding court did not abuse discretion partners, following: individual Wil against sending West to N.I.C.I. for 120 Anderson, Ander liam Albert Gordon H. days. Anderson, son, Trent Thomas M. An R. that, argues under the circumstanc- derson, Anderson, Jr., William A. Ben case, es of this the maximum indeterminate Smith, III, Laverty W. L. John Clifford excessively punishment. is an harsh Martin, Anderson, Jeffrey M. G. Mack Only the opinion agrees.5 writer of this In Martin, Michael K. Defend Martin and do, must, regard my I as I exercise ant-Appellants. independent judgment. doing so I am in RANCHES, partnership; SAN TAN part guided by former members following: partners, Wil individual willing Court who were to do the same. Anderson, H. Ander liam Albert Gordon I Particularly refer to the vote of Justice Anderson, son, Thomas M. An R. Trent Weise, Keeton in State v. Anderson, Jr., derson, Ben William A. P.2d 97 III, Smith, Laverty W. Clifford L. John age, inability Because of West’s Anderson, Martin, Plaintiff-Ap G. Mack associates, resist influences pellants, offense, fact that this was his first serious Department the fact that the of Corrections RITE, INC., corpora SPRAY an Idaho good feels that West was a candidate for tion, Defendant-Respondent, and, necessarily, particularly N.I.C.I. by exposure prison benefited general *6 population services, and the fact that Agricultural Division, Mobay Chemagro against this was a crime property involving Corporation, Chemical Defendants. violence, no I would in the interests of justice No. 13191. modify West’s sentence from five to years.6 and a half Supreme Court of Idaho.
Sept. 1981. Any denigrate 5. I would not the seriousness of the deterrent effect which the occurred, here, by might already which was done West but am have on West has logic argument influenced that a of counsel’s If will never occur. West or other would-be purposes stupid term will lesser serve the dual not deterred vandals are childish activities penitentiary from such fully just year of deterrence and retribution as year as the five even one in the imposed. extremely unlikely it is that five any will serve them better.