               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 47054

STATE OF IDAHO,                                 )
                                                )    Filed: June 23, 2020
       Plaintiff-Respondent,                    )
                                                )    Melanie Gagnepain, Clerk
v.                                              )
                                                )    THIS IS AN UNPUBLISHED
MELODY MIRANDA GREEN, aka                       )    OPINION AND SHALL NOT
BERGQUIST,                                      )    BE CITED AS AUTHORITY
                                                )
       Defendant-Appellant.                     )
                                                )

       Appeal from the District Court of the Third Judicial District, State of Idaho,
       Washington County. Hon. Susan E. Wiebe, District Judge.

       Order granting in part and denying in part motion for credit for time
       served, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Jenny C. Swinford,
       Deputy Appellate Public Defender, Boise, for appellant.

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

GRATTON, Judge
       Melody Miranda Green appeals from the district court’s order partially denying her
motion for credit for time served. For the reasons set forth below, we affirm.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       On July 14, 2017, in Washington County, the State charged Green with two felony counts
of possession of a controlled substance. 1 Green eventually pled guilty to one count and the State


1
       Green was in custody from July 14, 2017, to August 2, 2017, and was released upon
posting bond. However, she continued to be held in custody for warrants in her Payette County
case. Jail records indicate she was in custody from August 2, 2017, to August 3, 2017, and that
she was also in custody August 17, 2017, to October 3, 2017.

                                                1
dismissed the second count as part of a plea agreement. The district court suspended Green’s
sentence 2 and placed her on probation with the requirement that she attend drug court. Green
was accepted into drug court on October 5, 2017. Green violated her probation by, among other
things, committing new offenses. The district court revoked probation and ordered the sentence
executed.
       The record shows Green was in custody in the Payette County jail from October 19,
2017, to December 18, 2017. 3 Green served discretionary jail time as a drug court sanction.
Green filed a motion for credit for time served. The district court determined that the periods of
custody that Green claimed she was entitled to credit for time served in this Washington County
case were actually related to a Payette County case:
       What is perhaps most confusing, is that the Defendant posted bond in her
       Washington County cases, but was still held in custody on warrants from Payette
       County case number CR-2011-2415. . . . This means that her Washington County
       cases were not a basis for much of her incarceration during the time these cases
       were proceeding. . . . She was also incarcerated for discretionary jail time from
       August 21, 2017 to October 3, 2017, on her Payette County case. Ms. Green does
       get credit for this discretionary jail time, but in the Payette County case only.
       This discretionary time was not related to the Washington County cases as she
       had posted bail in those cases, and it was imposed subject to the probation
       violation in the Payette County case.
The district court granted Green’s motion in part and denied it in part, awarding her twenty-four
days of pre-imposition incarceration time. Green timely appeals, asserting that at least some of
the discretionary jail time she served was in both cases.
                                                 II.
                                   STANDARD OF REVIEW
       Whether a sentencing court has properly awarded credit for time served is a question of
law subject to free review. State v. Taylor, 160 Idaho 381, 384-385, 373 P.3d 699, 702-03
(2016); State v. Vasquez, 142 Idaho 67, 68, 112 P.3d 1167, 1168 (Ct. App. 2005). We defer to
the trial court’s findings of fact unless those findings are unsupported by substantial and
competent evidence in the record and are therefore clearly erroneous. State v. Covert, 143 Idaho
169, 170, 139 P.3d 771, 772 (Ct. App. 2006).
2
       Green’s sentence is for a unified term of five years with two years determinate.
3
       The jail records, for reasons that are unclear, list Green’s time in jail as being October 19,
2017, to November 19, 2017, and November 16, 2017, to December 18, 2017. The reasons for
the overlap between November 19 and 16 are unclear.
                                                 2
                                                 III.
                                             ANALYSIS
       Green argues the district court erred by partially denying her credit for time served for the
period of custody she contends was served as a discretionary drug court sanction stemming from
her Washington County case. The State argues that the district court correctly concluded that the
challenged period of custody was related to Green’s Payette County case and that she has failed
to show clear error. Both parties acknowledge the record is not clear. We hold that Green has
failed to show that the district court erred in calculating her credit for time served.
       Idaho Code § 19-2603 governs credit for time served as a condition of probation. It
mandates that a defendant receive credit for time served for any time served as a condition of
probation under the suspended sentence. Id. Neither party disputes the applicability of the
statute, only whether the discretionary time Green served stemmed from her Payette County case
or her Washington County case. The record is not clear on this issue.
       The district court concluded that Green was entitled to credit for the discretionary jail
time she served on her Payette County case but additionally found “[t]his discretionary time was
not related to the Washington County cases as she had posted bail in those cases, and it was
imposed subject to the probation violation in the Payette County case.” Green argues she served
“at least one period of incarceration at the Payette County Jail, evidenced by her motion for
credit for time served and supporting documents.”           However, these supporting documents
consisting of conflicting jail records and her own assertions, made through motions and
affidavits claiming she was not getting the appropriate credit for time served, do not show that
the district court’s factual determinations are clearly erroneous. Green argues that her pro se
motion, her affidavit, and her motion through counsel all show the calculation of time was in
error: “[s]he averred she was not getting credit for time served in Payette County Jail.” Green
claims that all these documents taken collectively “establish[] she was in custody in [the] Payette
County Jail for some period of time when she was in drug court as a condition of her
probation . . . . The district court therefore erred by not awarding her credit for time served as a
condition of probation.” Green claims that the time served as a condition of probation related to
drug court violations and that she was in drug court simultaneously from both the Payette County
and Washington County cases. Therefore, she asserts that the discretionary time served in
Payette County related to both cases. She provided no evidence other than her assertion that she

                                                   3
was in drug court on both cases or that the discretionary time served in Payette County related to
the Washington County case.
       The findings of the district court cannot be disproven by mere assertions, which make up
the bulk of Green’s argument. Her affidavits and claims below that she was not getting the
correct credit for time served are not sufficient to demonstrate the findings of the district court
were clearly erroneous. Additionally, Green admits the record is not clear in this case and often
argues she is entitled to at least some credit, without referencing any specific number or
calculation. 4 Green’s assertions only highlight the confusing nature of the record which is not
enough to establish clear error. Accordingly, the district court’s finding that Green was only
entitled to credit for time served for the Payette County case has not been disproven by the
record. Green has failed to show that the district court erred by not granting her additional credit
for time served on her Washington County case.
                                                IV.
                                         CONCLUSION
       Green has failed to show the district court’s conclusion that Green’s time served as a
discretionary drug court sanction was related to the Payette County case and not the Washington
County case was clearly erroneous. Accordingly, we affirm.
       Chief Judge HUSKEY and Judge LORELLO CONCUR.




4
        Green additionally argues that the district court’s sanction order shows a period of
incarceration which was a drug court sanction: “On November 30, 2017, fifty-six days after Ms.
Green’s drug court acceptance, the district court ordered her to remain in custody until
December 18, 2017, for violating a drug court rule.” (Emphasis added.) Though this order
references the Washington County case number, it was filed in the Payette County case. Green
claims this order confirms she was in custody as a condition of her probation in Washington
County.      This order only convolutes the issue, it does not clearly demonstrate an
acknowledgement that the period of incarceration stemmed from Green’s Washington County
case.
        Moreover, this claim was not presented to the district court in support of the motion for
credit for time served and therefore, cannot be considered on appeal. State v. Gonzalez, 165
Idaho 95, 96, 439 P.3d 1267, 1268 (2019) (rejecting claim of error regarding calculation of credit
for time served because claim was not presented to district court); State v. Mitchell, 124 Idaho
374, 376 n.1, 859 P.2d 972, 974 n.1 (Ct. App. 1993) (The appellate court is limited to review of
the record made below and will not consider new evidence that was never before the trial court.).
                                                 4
