                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                               Docket Nos. 39638, 39640 & 39641

STATE OF IDAHO,                                    )    2013 Unpublished Opinion No. 397
                                                   )
       Plaintiff-Respondent,                       )    Filed: March 13, 2013
                                                   )
v.                                                 )    Stephen W. Kenyon, Clerk
                                                   )
MAX J. GORRINGE,                                   )    THIS IS AN UNPUBLISHED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. Stephen Drescher, Juneal C. Kerrick, and Thomas J. Ryan,
       District Judges.

       Orders denying motions to dismiss, affirmed; judgment of conviction for
       attempted strangulation, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Spencer J. Hahn, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________
MELANSON, Judge
       Max J. Gorringe appeals from orders denying his motions to dismiss in Docket Nos.
39638 and 39640.       Gorringe also appeals from his judgment of conviction for attempted
strangulation in Docket No. 39641, specifically challenging the denial of his motion to dismiss.
For the reasons set forth in this opinion, we affirm.
                                                 I.
                                  FACTS AND PROCEDURE
       These cases have a somewhat complicated procedural history. Gorringe was charged by
criminal complaint filed on February 26, 2011, with felony domestic battery and second degree
kidnapping. A warrant for his arrest was served, but it appears that no further proceedings were
held in that case and it was dismissed without prejudice on May 4, 2011. On the same day,
another criminal complaint was filed charging Gorringe with felony domestic battery, second


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degree kidnapping, and attempted strangulation. A superseding indictment was filed on June 8,
2011, charging only felony domestic battery and second degree kidnapping. This case was
appealed in Docket No. 39638. Gorringe was also charged with domestic battery and second
degree kidnapping in a separate case which was initiated by a grand jury indictment filed on
June 8, 2011. That case was appealed in Docket No. 39640. In still another case, Gorringe was
charged with attempted strangulation and second degree kidnapping. That case was initiated by
the filing of a criminal complaint on May 20, 2011. A superseding grand jury indictment was
filed in that case on June 8, 2011. That case was appealed in Docket No. 39641. The charges in
each case stem from apparently separate events involving the same victim. Gorringe’s initial
appearance in the two cases initiated by criminal complaint (Docket Nos. 39638 and 39641) was
held on May 25, 2011, and a preliminary hearing was scheduled for June 13. However, on
June 8, separate superseding indictments were filed in those two cases as well as an indictment in
Docket No. 39640.
       Gorringe filed motions to dismiss in all three cases for violation of I.C.R. 5.1(a), arguing
that the timeframe for conducting a preliminary hearing had been exceeded. Two separate
hearings were held before two different judges. The first judge denied the motion as to all three
cases. At a second hearing regarding a motion to dismiss in Docket No. 39641, counsel for
Gorringe abandoned the motion, seeking only reinstatement of previous bonds. The district
court denied the motion. Pursuant to a plea agreement, Gorringe pled guilty only to one count of
attempted strangulation (Docket No. 39641) and reserved his right to appeal from the denial of
his motion to dismiss. All of the remaining counts in all three cases were dismissed as part of the
plea agreement. Gorringe now appeals and asserts that the district court erred when it denied his
motions to dismiss.
                                                II.
                                           ANALYSIS
A.     Docket Nos. 39638 & 39640
        Gorringe filed a notice of appeal in these cases, but did not challenge the denial of his
motions to dismiss. In a footnote in his brief, Gorringe states that he will not pursue either
appeal because the cases were dismissed and rendered moot. Therefore, we affirm the district
court’s denial of his motions to dismiss as to Docket Nos. 39638 and 39640.




                                                2
B.     Docket No. 39641
       The standard of review for a trial court’s decision on a motion to dismiss is abuse of
discretion. State v. Card, 137 Idaho 182, 184, 45 P.3d 838, 840 (2002). 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).
       Gorringe argues that the case should have been dismissed for violation of Idaho Criminal
Rule 5.1, for failure to abide by the time limit to hold a preliminary hearing after an initial
appearance, even though counsel abandoned that argument in the hearing on the motion to
dismiss in the strangulation case. Gorringe asserts that the delay for a preliminary hearing was
105 days 1 in his case. On that basis, Gorringe argues the trial court erred when it denied his
motion to dismiss. However, the error, if any, in denying the motion to dismiss was invited by
Gorringe when his counsel expressly abandoned dismissal as a remedy for the alleged violation
of Rule 5.1. The doctrine of invited error applies to estop a party from asserting an error when
his or her own conduct induces the commission of the error. One may not complain of errors
one has consented to acquiesced in. In short, invited errors are not reversible. State v. Norton,
151 Idaho 176, 187, 254 P.3d 77, 88 (Ct. App. 2011). Therefore, we affirm the district court.
       However, even addressing Gorringe’s claim, Gorringe has not demonstrated any error.
Where a defendant is indicted by a grand jury, the time limit for a preliminary hearing following
an initial appearance in Rule 5.1(a) does not apply. Where a defendant is not in custody, the
statutory time limit is increased from fourteen to twenty-one days. Id. A defendant seeking
dismissal under a violation of Rule 5.1 must show either oppressive conduct on behalf of the
state or prejudice to the defendant. State v. Reutzel, 130 Idaho 88, 93, 936 P.2d 1330, 1335 (Ct.
App. 1997).
       Gorringe’s initial appearance in this case was on May 25, 2011. Gorringe bonded out
that same day, triggering the twenty-one-day time limit applicable to defendants who are not in

1
       Apparently, Gorringe is counting his time in custody from the date of his arrest in the
subsequently dismissed case.

                                               3
custody under Rule 5.1. The preliminary hearing was scheduled for June 13, 2011, per request
of defense counsel. On June 8, 2011, a grand jury issued a superseding indictment in this case,
rendering any question of time limits under Rule 5.1 moot. The underlying offense in the case,
which is the offense Gorringe pled guilty to, is a separate incident and occurred on a separate
date than the case filed on February 26. Therefore, whether Rule 5.1 was violated in either of the
other two cases against Gorringe is irrelevant. For this case, the case in which the district court
entered a judgment of conviction, there was no violation of Rule 5.1 and the district court
properly denied the motion to dismiss.
                                               III.
                                         CONCLUSION
       The orders denying the motions to dismiss as to Docket Nos. 39638, 39640, and 39641
and Gorringe’s judgment of conviction in Docket No. 39641 are affirmed.
       Judge LANSING and Judge GRATTON, CONCUR.




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