               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 38197

STATE OF IDAHO,                                  )     2011 Unpublished Opinion No. 715
                                                 )
       Plaintiff-Respondent,                     )     Filed: November 21, 2011
                                                 )
v.                                               )     Stephen W. Kenyon, Clerk
                                                 )
DANA LYDELL SMITH,                               )     THIS IS AN UNPUBLISHED
                                                 )     OPINION AND SHALL NOT
       Defendant-Appellant.                      )     BE CITED AS AUTHORITY
                                                 )

       Appeal from the District Court of the Fifth Judicial District, State of Idaho,
       Minidoka County. Hon. Michael R. Crabtree, District Judge.

       Order denying motion for a Faretta hearing, affirmed.

       Molly J. Huskey, State Appellate Public Defender; Diane M. Walker, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

                      Before GRATTON, Chief Judge; LANSING, Judge;
                                 and GUTIERREZ, Judge

PER CURIAM
       Dana Lydell Smith appeals from the district court’s order denying his motion for a
Faretta 1 hearing and motion to alter or amend judgment. Smith contends the district court erred
by failing to conduct a Faretta hearing. Alternatively, Smith contends the district court erred by
failing to conduct a Faretta hearing before denying his motion to alter or amend the judgment.
We affirm.
       On March 31, 2008, the district court entered a judgment of conviction reflecting Smith’s
conviction for grand theft. Smith appealed therefrom and this Court affirmed the judgment in an
unpublished opinion. State v. Smith, Docket Nos. 35216 & 35604 (Ct. App. May 20, 2009).


1
       Faretta v. California, 422 U.S. 806 (1975).

                                                1
        On September 3, 2010, Smith filed a motion for a Faretta hearing, requesting a
competency hearing to determine if he could proceed on the criminal case by representing
himself. On September 14, 2010, Smith also filed a motion to alter or amend a judgment
pursuant to Idaho Rule of Civil Procedure 59(e). On September 24, 2010, the district court
issued an order denying Smith’s motion for a Faretta hearing and motion to alter or amend a
judgment.
        Smith filed a notice of appeal on October 15, 2010, timely only from the order issued on
September 24, 2010. Notably, the district court denied Smith’s motion for a new trial in an order
entered on August 30, 2010. Pursuant to the Supreme Court’s order clarifying jurisdiction,
Smith’s appeal is applicable to the denial of his motion for a Faretta hearing only. As to the
motion to alter or amend a judgment, the Supreme Court noted Idaho Rule of Civil Procedure 59
is a civil rule only and is not applicable.
        Under Faretta v. California, 422 U.S. 806 (1975) a defendant has a constitutional right to
self-representation, but a waiver of the right to counsel must be done “knowingly and
intelligently.” However, a Faretta hearing could be necessary only if there were criminal
proceedings pending in which Smith was entitled to counsel. When Smith filed his motion for a
Faretta hearing, the motion for a new trial had already been denied and was no longer pending.
Additionally, his subsequent Rule 59 motion was unauthorized by any rule or statute, so nothing
was pending for which he had a waivable right to counsel. Hence, there was no basis for a
Faretta hearing. Smith has, therefore, failed to show error in the denial of his motion for a
Faretta hearing. Accordingly, we affirm the district court’s order denying Smith’s motion for a
Faretta hearing.




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