               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 45135

STATE OF IDAHO,                                )   2018 Unpublished Opinion No. 421
                                               )
       Plaintiff-Respondent,                   )   Filed: April 10, 2018
                                               )
v.                                             )   Karel A. Lehrman, Clerk
                                               )
EVIN CHRISTOPHER DEVAN,                        )   THIS IS AN UNPUBLISHED
                                               )   OPINION AND SHALL NOT
       Defendant-Appellant.                    )   BE CITED AS AUTHORITY
                                               )

       Appeal from the District Court of the Third Judicial District, State of Idaho,
       Canyon County. Hon. Davis F. Vandervelde, District Judge.

       Order denying motion for credit for time served, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Reed P. Anderson, Deputy
       Appellate Public Defender, Boise, for appellant.

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

                    Before GRATTON, Chief Judge; GUTIERREZ, Judge;
                                 and LORELLO, Judge
                  ________________________________________________

PER CURIAM
       Evin Christopher Devan was found guilty by a jury of conspiracy to commit burglary,
burglary, and misdemeanor trespassing. The district court sentenced Devan to concurrent unified
sentences of five years with two years determinate for conspiracy to commit burglary and
burglary, suspended the sentences and placed him on probation for five years. At the time of
sentencing, Devan was given credit for 165 days served. Subsequently, the district court revoked
probation and executed the underlying sentences. Devan filed a motion for credit for time served
arguing that he was entitled to credit for time served because he served 180 days in an unrelated
case and the sentence in the unrelated case was ordered to be served concurrently to his
sentences in this case. Devan’s motion was denied by the district court. Mindful that he is not

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entitled to credit for time served on probation, Devan contends that the district court erred when
it denied his motion.
       The awarding of credit for time served is governed by Idaho Code § 18-309. The
language of I.C. § 18-309 is mandatory and requires that, in sentencing a criminal defendant or
when hearing an Idaho Criminal Rule 35(c) motion for credit for time served, the court give the
appropriate credit for prejudgment incarceration. State v. Moore, 156 Idaho 17, 20-21, 319 P.3d
501, 504-05 (Ct. App. 2014). This means that the defendant is entitled to credit for all time spent
incarcerated before judgment. Moore, 156 Idaho at 21, 319 P.3d at 505. The converse is also
true--that the defendant is not entitled to credit under I.C. § 18-309 for any time not actually
spent incarcerated before judgment. Id.; see also State v. Hernandez, 120 Idaho 785, 792, 820
P.2d 380, 387 (Ct. App. 1991) (stating that I.C. § 18-309 does not allow the defendant to receive
credit for more time than he or she has actually been in confinement). Accordingly, a district
court may only give credit for the correct amount of time actually served by the defendant prior
to imposition of judgment in the case; the district court does not have discretion to award credit
for time served that is either more or less than that. Moore, 156 Idaho at 21, 319 P.3d at 505.
Thus, the defendant is entitled to credit for time actually served prior to entry of judgment in the
case. Id.
       The district court did not err in denying Devan’s motion for credit for time served. The
180 days for which Devan sought credit were served in an unrelated case. Even though that
sentence was ordered served concurrent with the sentence in this case, Devan was not serving
time in this case during that 180 days but was, instead, on probation. Devan is not entitled to
credit for time served on probation. I.C. § 18-309. Therefore, the district court’s order denying
Devan’s motion for credit for time served is affirmed.




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