               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 39165

STATE OF IDAHO,                                  )     2013 Opinion No. 29
                                                 )
       Plaintiff-Respondent,                     )     Filed: May 24, 2013
                                                 )
v.                                               )     Stephen W. Kenyon, Clerk
                                                 )
KIM J. DAY,                                      )
                                                 )
       Defendant-Appellant.                      )
                                                 )

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

       Order revoking probation and requiring execution of unified fourteen-year
       sentence, with four years determinate, for grand theft, vacated and case remanded.

       Sara B. Thomas, State Appellate Public Defender; Shawn F. Wilkerson, Deputy
       Appellate Public Defender, Boise, for appellant.

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

GUTIERREZ, Chief Judge
       Kim J. Day pled guilty to grand theft. Idaho Code §§ 18-2403, 18-2407(1)(b). The
district court imposed a unified fourteen-year sentence, with four years determinate, but
suspended the sentence and placed Day on probation. Subsequently, Day violated his probation
by incurring additional convictions for lewd conduct with a minor under sixteen and being a
persistent violator. The State filed a report of probation violation. The district court found Day
was in violation of his probation, stating the lewd conduct conviction was “binding” on the court,
and consequently revoked probation and ordered execution of the underlying sentence. The
court noted, however, that it was aware Day was appealing the lewd conduct conviction and that
the court would “reconsider” its decision to revoke probation in the event the conviction was
overturned on appeal. Day expressed concern that the district court would no longer have
jurisdiction to do so after the time for filing an Idaho Criminal Rule 35 motion passed. The



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district court replied: “I don’t really know the answer to that. . . . [I]t may be worthwhile to
appeal this . . . .” Day appeals, contending the district court abused its discretion in revoking
probation and requiring execution of the underlying sentence without reduction.
       Day also challenges the Idaho Supreme Court’s order denying in part his motion to
augment the record on appeal. While this appeal was pending, Day filed a motion to augment
the record on appeal with additional transcripts. The Idaho Supreme Court issued an order
granting in part and denying in part Day’s motion. Specifically, the Court denied Day’s motion
as to his request to augment the record on appeal with the transcript of the original sentencing
hearing.
       Also while this appeal was pending, Day’s appeal from his judgment of conviction for
lewd conduct with a minor came before this Court. We reversed the conviction on the basis that
there existed a fatal variance between the charging document and the jury instructions that
amounted to fundamental error. State v. Day, ___ Idaho ___, ___ P.3d ___ (Ct. App. 2013).
       Because it is dispositive, we only address Day’s claim that the district court erred in
revoking Day’s probation. A district court’s decision to revoke probation will not be overturned
on appeal absent a showing that the court abused its discretion. State v. Sanchez, 149 Idaho 102,
105, 233 P.3d 33, 36 (2009). When a trial court’s discretionary decision is reviewed on appeal,
the appellate court conducts a multi-tiered inquiry to determine: (1) whether the lower court
correctly perceived the issue as one of discretion; (2) whether the lower court acted within the
boundaries of such discretion and consistently with any legal standards applicable to the specific
choices before it; and (3) whether the lower court reached its decision by an exercise of reason.
State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).
       Day contends the district court abused its discretion “because that decision was based, in
large part, on its erroneous assumption that it would have continuing jurisdiction over Mr. Day,
and therefore, the discretion to reinstate Mr. Day’s probation in the event Mr. Day’s conviction
for lewd conduct is overturned on appeal.” Day is correct that the district court would not
possess residual jurisdiction to alter the sentence or to reinstate probation, absent a Rule 35
motion, which must be filed within fourteen days after the order revoking probation. I.C.R. 35;
State v. Fleshman, 144 Idaho 772, 774, 171 P.3d 263, 265 (Ct. App. 2007). Thus, the district
court abused its discretion in revoking probation on this basis because this reasoning was not
consistent with the applicable legal standards.


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       We also note that, even absent an abuse of discretion in this manner, where a conviction
forming the basis of a revocation of probation is set aside, it is proper that a case be remanded
back to the trial court for redetermination of the status of a defendant’s probation in light of the
reversal of his conviction. This is so because a court may not revoke probation without a finding
that a probationer violated the terms of probation. State v. Blake, 133 Idaho 237, 243, 985 P.2d
117, 123 (1999) (remanding for reconsideration of probation revocation where probation had
been revoked based on the defendant’s recent convictions and a missed meeting with his
probation officer, but those recent convictions were set aside by the appellate court). 1 The
district court’s order revoking probation is vacated and this case is remanded for a new hearing. 2
       Judge LANSING and Judge MELANSON CONCUR.




1
        We note the fact that Day’s underlying conviction was vacated does not mean the district
court cannot still revoke probation upon reconsideration of the issue. There is no requirement
that a judgment of conviction be a prerequisite to finding a probation violation when the alleged
violation is the commission of a crime. State v. Wilson, 127 Idaho 506, 510-11, 903 P.2d 95,
99-100 (Ct. App. 1995). A probation violation, unlike a criminal conviction, need not be proven
beyond a reasonable doubt. State v. Dempsey, 146 Idaho 327, 329, 193 P.3d 874, 876 (Ct. App.
2008). These considerations are especially relevant where, as here, a conviction is vacated due
to a procedural irregularity rather than insufficiency of evidence.
2
      Since we vacate the order revoking probation and remand for further proceedings, we
need not address Day’s contentions that the Supreme Court erred in denying his motion to
augment the record and that the sentence imposed upon revocation of probation was excessive.

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