               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 44363

RICHARD LARSON,                                 )     2017 Unpublished Opinion No. 525
                                                )
       Petitioner-Appellant,                    )     Filed: July 19, 2017
                                                )
v.                                              )     Karel A. Lehrman, Clerk
                                                )
STATE OF IDAHO,                                 )     THIS IS AN UNPUBLISHED
                                                )     OPINION AND SHALL NOT
       Respondent.                              )     BE CITED AS AUTHORITY
                                                )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Bonner County. Hon. Barbara A. Buchanan, District Judge.

       Appeal from order         summarily dismissing        petition   for   post-conviction
       relief, affirmed.

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

       Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

GRATTON, Chief Judge
       Richard Larson appeals from the district court’s order summarily dismissing his petition
for post-conviction relief. For the reasons set forth below, we affirm.
                                                 I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Larson was found guilty by a jury of two counts of aggravated assault. Idaho Code
§§ 18-901, 18-905. The district court imposed a unified sentence of ten years with four years
determinate. This Court affirmed Larson’s judgment of conviction and sentence. State v.
Larson, 158 Idaho 130, 344 P.3d 910 (Ct. App. 2014). Larson filed a petition for review. The
Idaho Supreme Court denied the petition for review and filed a remittitur on February 24, 2015.
       On February 16, 2016, Larson deposited two copies of a pro se petition for post-
conviction relief into the prison legal mail system. The Idaho State Correctional Center legal

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mail log denotes that on February 16, 2016, Larson’s petition was sent to the following
addresses: Bonner County Courthouse, 127 S. First Avenue, Sandpoint, Idaho and Bonner
County Prosecuting Attorney, 127 S. First Avenue, Sandpoint, Idaho.             Thereafter, Larson
realized that 127 S. First Avenue was not the correct address for the Bonner County Courthouse
and mailed another copy to the correct address. Larson included a notarized letter explaining
that he had first mailed the petition on February 16, 2016. The Bonner County District Court
Clerk received this copy of the petition and the explanatory letter on May 2, 2016. Thus,
Larson’s petition for post-conviction relief was date stamped as being filed with the Bonner
County District Court Clerk on May 2, 2016.
       The district court issued a notice of intent to dismiss Larson’s petition for post-conviction
relief on the grounds that the petition was not timely filed. Larson filed a response to the court’s
notice in which he argued that under the “mailbox rule,” his petition was timely filed. Further,
Larson argued that he exercised due diligence in mailing a second copy of his petition upon
learning that the original mailing of his petition for post-conviction relief was not received by the
clerk. Larson attached the prison mail log to his response. The district court dismissed Larson’s
petition as untimely. Larson filed a motion to reconsider, which the district court denied. Larson
timely appeals.
                                                 II.
                                           ANALYSIS
       Our review of the district court’s construction and application of the limitation statute is a
matter of free review. Kriebel v. State, 148 Idaho 188, 190, 219 P.3d 1204, 1206 (Ct. App.
2009). The statute of limitation for post-conviction actions provides that a petition for post-
conviction relief may be filed at any time within one year from the expiration of the time for
appeal, from the determination of appeal, or from the determination of a proceeding following an
appeal, whichever is later. I.C. § 19-4902(a). The appeal referenced in that section means the
appeal in the underlying criminal case. Gonzalez v. State, 139 Idaho 384, 385, 79 P.3d 743, 744
(Ct. App. 2003). The failure to file a timely petition is a basis for dismissal of the petition.
Kriebel, 148 Idaho at 190, 219 P.3d at 1206.
       The mailbox rule deems a pro se inmate’s document filed as of the date it was submitted
to prison authorities for the purpose of mailing to the court for filing. Munson v. State, 128
Idaho 639, 643, 917 P.2d 796, 800 (1996). See also State v. Lee, 117 Idaho 203, 204, 786 P.2d

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594, 595 (Ct. App. 1990) (holding that under the mailbox rule pro se inmate’s documents are
considered filed when they are delivered to prison authorities for the purpose of mailing to the
court clerk). The policy behind the mailbox rule is that once a prisoner submits documents to
prison authorities for filing with the court, the prisoner no longer has control over his or her
documents. Munson, 128 Idaho at 643, 917 P.2d at 800.
       This case is distinguishable from Munson and Lee because, while Munson and Lee
correctly addressed their documents to the clerk of the court, Larson did not. The record
indicates that even though Larson identified the recipient of one of his mailings as the Bonner
County Courthouse, he addressed the envelope to the prosecuting attorney’s physical address.
The petition for post-conviction relief was finally received by the clerk of the court after Larson
discovered his error and sent a second copy to the correct address. The mailbox rule does not
apply in this case because the reason the petition was not delivered was that Larson failed to
address it properly, and not because some other factor such as the prison mail system interfered.
The petition would have been timely under the mailbox rule if the envelope was properly
addressed; however, it was not properly addressed. A petition being mailed to a wrong address
by a non-incarcerated person would similarly be held as untimely. Therefore, Larson’s petition
for post-conviction relief was not timely filed with the clerk of the court.
       Finally, Larson complains that the district court relied on an unpublished opinion issued
by this Court in reaching its conclusion and that unpublished opinions shall not be cited as
authority. We need not address this issue as the district court’s conclusion is correct.
                                                 III.
                                          CONCLUSION
       Larson’s petition for post-conviction relief was untimely. We affirm the district court’s
order summarily dismissing Larson’s petition for post-conviction relief.
       Judge GUTIERREZ and Judge HUSKEY CONCUR.




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