               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 47031

 STATE OF IDAHO,                                )
                                                ) Filed: March 24, 2020
        Plaintiff-Respondent,                   )
                                                ) Karel A. Lehrman, Clerk
 v.                                             )
                                                )
 GUY KELLY DUNNE,                               )
                                                )
        Defendant-Appellant.                    )
                                                )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Peter G. Barton, District Judge.

       Order revoking withheld judgment, entering judgment of conviction, and order
       retaining jurisdiction, reversed; order denying I.C.R. 35 motion for correction of an
       illegal sentence, reversed.

       Eric D. Fredericksen, State Appellate Public Defender; Sally J. Cooley, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

LORELLO, Judge
       Guy Kelly Dunne appeals from the district court’s order revoking his withheld judgment,
entering judgment of conviction, and retaining jurisdiction and from the district court’s order
denying his I.C.R. 35 motion for correction of an illegal sentence. We reverse both the order
revoking withheld judgment, entering judgment of conviction and retaining jurisdiction, as well as
the order denying Dunne’s I.C.R. 35 motion for correction of an illegal sentence.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
        In 2012, Dunne pled guilty to leaving the scene of an injury accident. I.C. § 18-8007. The
district court entered an order withholding judgment and placed Dunne on probation for five years.



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In 2014, after Dunne admitted violating his probation, the district court entered an order reinstating
Dunne’s probation for another five years and imposing additional probation conditions.
       In 2018, the State filed a second motion for probation violation. Dunne admitted violating
his probation again, and the case was continued for disposition at a later date. Prior to disposition,
Dunne filed an I.C.R. 35 motion for correction of an illegal sentence, arguing that the imposition
of a new five-year probation period in 2014 was unlawful and, therefore, the lawful period of his
probation expired in 2017. The district court denied Dunne’s motion. Ultimately, the district court
revoked Dunne’s probation; imposed a sentence of three years, with a one-year minimum term of
confinement; and retained jurisdiction. Dunne appeals.
                                                 II.
                                   STANDARD OF REVIEW
        Whether a court lacks jurisdiction is a question of law over which this Court exercises free
review. State v. Jones, 140 Idaho 755, 757, 101 P.3d 699, 701 (2004). This Court also exercises
free review over the application and construction of statutes, State v. Reyes, 139 Idaho 502, 505,
80 P.3d 1103, 1106 (Ct. App. 2003), and over the denial of a motion under I.C.R. 35 for correction
of an illegal sentence, State v. Josephson, 124 Idaho 286, 287, 858 P.2d 825, 826 (Ct. App. 1993).
                                                 III.
                                            ANALYSIS
       Dunne raises two issues on appeal. First, Dunne argues that the district court lacked subject
matter jurisdiction to revoke his probation. Second, Dunne argues that the district court erred in
denying his I.C.R. 35 motion for correction of an illegal sentence. Both of Dunne’s arguments are
based on his assertion that he was no longer lawfully on probation when the State filed its motion
for probation violation in 2018 because the district court did not have authority to extend his
probation an additional five years when it entered disposition on Dunne’s 2014 probation violation.
The State responds that the district court properly imposed a “new” five-year probationary period
in 2014. Consequently, according to the State, the district court had jurisdiction to revoke Dunne’s
probation and his withheld judgment in 2019 and correctly denied Dunne’s I.C.R. 35 motion. We
hold that the district court’s order reinstating probation for five additional years after Dunne’s
probation violation in 2014 was not consistent with the available sentencing options. As a result,
Dunne’s probation expired in 2017, depriving the district court of jurisdiction to revoke Dunne’s


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withheld judgment, enter judgment and retain jurisdiction in 2019, and Dunne’s I.C.R. 35 motion
should have been granted.
       The district court’s sentencing authority is derived from statute. Where the language of a
statute is plain and unambiguous, this Court must give effect to the statute as written, without
engaging in statutory construction. State v. Burnight, 132 Idaho 654, 659, 978 P.2d 214, 219
(1999); State v. Escobar, 134 Idaho 387, 389, 3 P.3d 65, 67 (Ct. App. 2000). The language of the
statute is to be given its plain, obvious, and rational meaning. Burnight, 132 Idaho at 659, 978
P.2d at 219. Because Dunne originally received a withheld judgment with a five-year period of
probation, which he violated, the sentencing statutes relevant to this appeal are Idaho Code
Sections 19-2601, 19-2603, and 20-222.
       Idaho Code Section 19-2601 authorizes withheld judgments. When judgment is withheld,
the court may place the defendant on probation under such terms and conditions as the court deems
necessary. I.C. § 19-2601(3). However, the probationary term may not exceed the maximum
period for which the defendant might have been imprisoned. I.C. § 19-2601(7). Probation terms
that exceed the statutory maximum violate the statutes that govern probation. State v. Kesling, 155
Idaho 673, 677, 315 P.3d 861, 865 (Ct. App. 2013).
       A trial court’s options for disposition of a probation violation are governed by I.C. §§ 19-
2603 and 20-222(2). Idaho Code Section 19-2603 specifically references cases involving withheld
judgments and provides in part that, “when the court finds that the defendant has violated the terms
and conditions of probation, it may, if judgment has been withheld, pronounce any judgment which
it could originally have pronounced.” Idaho Code Section 20-222(2) also addresses disposition of
probation violations (although it does not specifically reference violations following a withheld
judgment) and provides:
               (1)    The period of probation or suspension of sentence shall be fixed by
       the court and may at any time be extended or terminated by the court. Such period
       with any extension thereof shall not exceed the maximum period for which the
       defendant might have been imprisoned.
               (2)    At any time during probation or suspension of sentence, the court
       may issue a warrant for violating any of the conditions of probation or suspension
       of sentence and cause the defendant to be arrested. Thereupon the court, after
       summary hearing may revoke the probation and suspension of sentence and cause
       the sentence imposed to be executed, or may cause the defendant to be brought
       before it and may continue or revoke the probation, or may impose any sentence


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       which originally might have been imposed at the time of conviction. In making a
       determination to continue or revoke probation and suspension of sentence, the court
       shall consider the defendant’s risks and needs and options for treatment in the
       community.
(Emphasis added.).
       Idaho Code Sections 19-2603 and 20-222 unambiguously limit a trial court’s options for
disposition of a probation violation occurring while judgment is withheld to: (1) imposing any
judgment that could have originally been pronounced or (2) extending or continuing the probation
despite a probation violation. If probation is extended, any extension may not exceed the
maximum period for which the defendant could have been imprisoned. I.C. § 20-222(1).
       In 2012, the district court withheld judgment and imposed the maximum term of probation
after Dunne pled guilty to leaving the scene of an injury accident in violation of I.C. § 18-8007.
The maximum term was five years. See I.C. § 18-8007 (providing that leaving the scene of an
injury accident is punishable by up to five years in prison). In 2014, the State filed a motion for
probation violation. Dunne admitted the violation, which resulted in an order designated “Order
Reinstating and Amending Probation” (2014 Order). The 2014 Order found Dunne violated the
terms of his probation and ordered Dunne’s probation “reinstated” for five years “upon the same
terms and conditions entered by this Court in the Order Withholding Judgment and Order of
Probation and Commitment filed on June 6, 2012,” and with additional “special conditions.”
Dunne argues that the additional five-year probationary period imposed by the 2014 Order was
unlawful because it extended his probationary term beyond the five-year statutory maximum for
leaving the scene of an injury accident.1 The State contends that the district court properly
interpreted the 2014 Order “as having imposed a new probation instead of continu[ing] the old
one,” which the State asserts was proper.
       The plain language of the 2014 Order did not provide for a “new” probation; rather, the
order “reinstated” Dunne’s probation for five additional years. “Reinstatement” of probation was


1
        Although Dunne did not appeal the 2014 Order, because his challenges are based on
jurisdiction and the legality of his sentence, his claims may be considered on appeal. See I.C.R. 35
(providing that the legality of a sentence can be raised at any time); Jones, 140 Idaho at 758, 101
P.3d at 702 (stating that challenges to subject matter jurisdiction can be raised at any time,
including for the first time on appeal). The State does not dispute that Dunne’s claims are properly
before this Court.

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not an option under either I.C. § 19-2603 or I.C. § 20-222. To the extent the district court’s
“reinstatement” of probation in 2014 was intended as an extension of Dunne’s probation
authorized by I.C. § 20-222(1), Dunne’s probation could not be extended beyond the five-year
maximum provided in I.C. § 18-8007. If the district court’s “reinstatement” of probation in 2014
was intended as a “continu[ance]” authorized by I.C. § 20-222(2), there was no authority for
continuing it beyond the original term. Rather, we interpret the words “continue . . . the probation”
as used in I.C. § 20-222(2) as only authorizing trial courts to allow a preexisting probation to
remain in place.
       Even accepting the State’s characterization of the 2014 Order as imposing a “new”
probation, the State cites no authority to support the proposition that a “new” probation was proper
in the manner in which it was done. The only mechanism for imposing a “new” probation would
be if the district court entered judgment at the same time. Under that circumstance, the district
court having previously withheld judgment could pronounce any judgment it could have originally
pronounced. I.C. § 19-2603; Peltier v. State, 119 Idaho 454, 460, 808 P.2d 373, 379 (1991)
(concluding that when a probation violation occurs following a withheld judgment, the court has
statutory authority to impose any sentence which originally might have been imposed). In Dunne’s
case, any such judgment could have included up to a five-year sentence, suspended or imposed
(including imposition with a period of retained jurisdiction). See I.C. § 18-8007(2). But, the
district court could not (and did not) again withhold judgment because a withheld judgment by its
very nature is not a judgment. Because a withheld judgment is not a judgment, it is not a judgment
that could have originally been pronounced for purposes of I.C. § 19-2603 or I.C. § 20-222(2).
See Ex Parte Medley, 73 Idaho 474, 479, 253 P.2d 794, 797 (1953) (stating that a withheld
judgment avoids the stigma of a judgment of conviction); see also State v. Branson, 128 Idaho
790, 793, 919 P.2d 319, 322 (1996) (noting that a withheld judgment is not a judgment of
conviction). Moreover, there is no reading of the 2014 Order that would allow this Court to
construe it as a judgment because it did not impose any sentence, suspended or otherwise.
       When the district court imposed the five-year probation period after Dunne’s probation
violation in 2014, he had already served approximately two years on probation. Thus, the
additional five years of probation imposed in the 2014 Order resulted in a total probation period
of seven years, which was beyond the permissible five-year maximum. See Kesling, 155 Idaho at


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677, 315 P.3d at 865. Dunne’s lawful probation term expired in 2017.2 Consequently, the State
could not pursue a probation violation in 2018. See State v. Gamino, 148 Idaho 827, 230 P.3d 437
(Ct. App. 2010) (establishing that in order for a court to possess authority to address an alleged
probation violation, the probation violation proceedings must be initiated within the defendant’s
probationary period). As a result, the district court lacked jurisdiction to enter its order revoking
withheld judgment, entering judgment of conviction, and retaining jurisdiction in 2019 based upon
that alleged probation violation. See Kesling, 155 Idaho at 677, 315 P.3d at 865 (holding that
courts do not have jurisdiction to take any action after the maximum authorized probation period).
For these same reasons, Dunne was entitled to relief on his I.C.R. 35 motion to correct illegal
sentence.3
                                                 IV.
                                          CONCLUSION
       Because the district court’s order “reinstating” probation for five additional years after
Dunne’s probation violation in 2014 was not consistent with the available sentencing options at
that time, Dunne’s probation expired in 2017, depriving the district court of jurisdiction to revoke
Dunne’s withheld judgment, enter judgment, and retain jurisdiction in 2019. Thus, we reverse
both the order revoking withheld judgment, entering judgment of conviction, and retaining
jurisdiction as well as the order denying Dunne’s I.C.R. 35 motion for correction of an illegal
sentence.
       Chief Judge HUSKEY and Judge GRATTON, CONCUR.




2
      There was a period of tolling related to Dunne’s 2014 probation violation. See State v.
Harvey, 142 Idaho 727, 729, 132 P.3d 1255, 1257 (Ct. App. 2006). That period did not prolong
Dunne’s original five-year probationary period beyond 2017.
3
        This Court has held that, if a duration of probation could be restructured to make it legal, a
court can do so pursuant to I.C.R. 35(a). State v. Villavicencio, 159 Idaho 430, 433, 362 P.3d 1, 4
(Ct. App. 2015). Thus, under I.C.R. 35(a), a court could amend a judgment to correct an illegal
sentence and use the amended judgment to address a motion to revoke probation. Villavicencio,
159 Idaho at 433, 362 P.3d at 4. In Dunne’s case, there was no judgment to amend prior to the
order withholding judgment, entering judgment of conviction, and retaining jurisdiction.

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