                 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                         Docket No. 46839

STATE OF IDAHO,                                  )
                                                 )    Filed: November 6, 2019
          Plaintiff-Respondent,                  )
                                                 )    Karel A. Lehrman, Clerk
v.                                               )
                                                 )    THIS IS AN UNPUBLISHED
NATHAN NICHOLAS HELBURN,                         )    OPINION AND SHALL NOT
                                                 )    BE CITED AS AUTHORITY
          Defendant-Appellant.                   )
                                                 )

          Appeal from the District Court of the Seventh Judicial District, State of Idaho,
          Bonneville County. Hon. Joel E. Tingey, District Judge.

          Order denying motion for new trial, affirmed.

          Nathan N. Helburn, Boise, pro se appellant.

          Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
          Attorney General, Boise, for respondent.
                    ________________________________________________

GRATTON, Chief Judge
          Nathan Nicholas Helburn appeals from the district court’s order denying his motion for
new trial. In his brief, Helburn does not assert how the district court erred below, but argues
there is newly discovered evidence that requires a new trial. For the reasons set forth below, we
affirm.
                                                 I.
                       FACTUAL AND PROCEDURAL BACKGROUND
          In 2010, Helburn was charged with first degree murder with a deadly weapon. Pursuant
to a plea agreement, Helburn pled guilty to second degree murder. He was sentenced to a unified
term of life imprisonment with ten years determinate. Helburn appealed, arguing his sentence is
excessive. This Court affirmed his conviction and sentence in 2011. State v. Helburn, Docket
No. 38597 (Ct. App. Nov. 15, 2011) (unpublished). The Idaho Supreme Court denied Helburn’s
petition for review and the remittitur was entered.



                                                  1
       On February 7, 2019, Helburn filed a motion for new trial, claiming there was newly
discovered evidence; namely, two witnesses that would testify the victim hid Helburn’s
psychiatric medications from him. The district court denied Helburn’s motion under Idaho
Criminal Rule 34, finding it lacked jurisdiction to consider the matter because it was untimely.
Helburn timely appeals.
                                                 II.
                                            ANALYSIS
       Helburn argues he is entitled to a new trial based on newly discovered evidence but fails
to assign error to the district court’s decision below. The State argues the district court did not
err in determining it lacked jurisdiction to consider the motion, and this Court similarly lacks
jurisdiction to consider the merits of Helburn’s argument.
        A question of jurisdiction is fundamental; it cannot be ignored when brought to our
attention and should be addressed prior to considering the merits of an appeal. State v. Kavajecz,
139 Idaho 482, 483, 80 P.3d 1083, 1084 (2003). Issues about the district court’s jurisdiction are
issues of law, over which the Court exercises independent review. State v. Rogers, 140 Idaho
223, 227, 91 P.3d 1127, 1131 (2004).
       The district court held that I.C.R. 34 required Helburn’s motion to be filed within two
years of the final judgment. 1 Helburn’s failure to timely file resulted in the court’s inability to
hear the motion. Rule 34(b)(1) states:
              Newly Discovered Evidence. Any motion for a new trial grounded on
       newly discovered evidence must be filed within two years after final judgment, if
       an appeal is pending, the court may not grant a motion for a new trial until the
       appellate court remands the case.
The district court noted that Helburn’s motion was not filed within the limitations period, and he
did not request an extension. 2 It held, “this court lacks jurisdiction to hear the motion.” We

1
         For the purposes of this rule, a judgment becomes “final” not when the judgment of
conviction is entered by the district court, but when the appeal or time for appeal has ended. See
State v. Parrott, 138 Idaho 40, 42, 57 P.3d 509, 511 (Ct. App. 2002).
2
       The time for filing a motion for a new trial based upon newly discovered evidence
       may not be extended unless an application for extension of time to file the motion
       is made within the statutory time limit. If such application is not made within the
       statutory time limit, the district court has no jurisdiction to consider a motion for a
       new trial filed outside the specified time period.
Parrott, 138 Idaho at 42, 57 P.3d at 511.

                                                  2
agree that the district court did not have the jurisdiction to consider the matter. A judgment
becomes final when the appeal or time for appeal has ended. Helburn’s two-year limit began to
run after the remittitur was entered in November of 2011, giving him until 2013 to timely file. 3
Helburn’s motion for new trial was filed in January 2019, over five years beyond the two-year
time limit imposed by Rule 34. Helburn makes no supported argument to the contrary. See State
v. Zichko, 129 Idaho 259, 263, 923 P.2d 966, 970 (1996) (holding that when issues on appeal are
not supported by propositions of law, authority, or argument, they will not be considered).

                                                 III.
                                          CONCLUSION
       Helburn’s motion for new trial was untimely under Idaho Criminal Rule 34. Therefore,
the district court correctly determined it did not have jurisdiction to hear the motion.
Accordingly, we affirm the district court’s order denying Helburn’s motion.
       Judge LORELLO and Judge BRAILSFORD CONCUR.




3
         The district court held: “Helburn’s motion comes nearly seven (7) years past the
limitations period . . . .” It appears the district court calculated the limitations period to run from
the judgment of conviction in 2010, which would have given him until 2012 to file a motion for
a new trial, making Helburn roughly seven years past the expiration of his window to timely file.
We assume the remittitur was the “final judgment” for purposes of the rule, which was entered
on November 29, 2011, giving him until November 2013 to file. Therefore, Helburn is five
years past the expiration of his window to timely file.

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