               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 41625

STATE OF IDAHO,                                 )   2015 Unpublished Opinion No. 314
                                                )
       Plaintiff-Respondent,                    )   Filed: January 21, 2015
                                                )
v.                                              )   Stephen W. Kenyon, Clerk
                                                )
ROMELIO ALVIN MARTINEZ, JR.,                    )   THIS IS AN UNPUBLISHED
                                                )   OPINION AND SHALL NOT
       Defendant-Appellant.                     )   BE CITED AS AUTHORITY
                                                )

       Appeal from the District Court of the Seventh Judicial District, State of Idaho,
       Bonneville County. Hon. Gregory S. Anderson, District Judge.

       Order denying I.C.R. 35 motion for reduction of sentence, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Kimberly E. Smith, Deputy
       Appellate Public Defender, Boise, for appellant.

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

MELANSON, Chief Judge
       Romelio Alvin Martinez, Jr., appeals from the district court’s order denying his I.C.R. 35
motion for reduction of sentence. For the reasons set forth below, we affirm.
       Martinez entered an Alford 1 plea to burglary and was sentenced in October 2002 to a
unified term of four years, with a minimum period of confinement of six months. Martinez was
also ordered to pay a fine of $500, $141.58 in restitution, a $500 public defender fee, $50 to the
victim’s relief fund, and $38.50 in court costs. In January 2003, Martinez filed an I.C.R. 35
motion for reduction of sentence, which was denied. In January 2006, Martinez again filed a
Rule 35 motion for reduction of sentence. In response, the district court entered an amended



1
       See North Carolina v. Alford, 400 U.S. 25 (1970).
                                                1
judgment of conviction, crediting Martinez for sixty additional days of time served, and
subsequently denied his motion for reduction of sentence.
       In October 2013, Martinez filed an ostensible motion for credit for time served in which
he requested, in essence, that he receive credit for time served in the form of forgiveness of his
unpaid court fines and fees, including $883.88 stemming from his burglary conviction. The
district court denied this motion without opinion or hearing. Martinez appeals, contending that
the district court abused its discretion by denying his Rule 35 motion.
       We initially note that, as acknowledged by both parties, Martinez’s motion--despite its
name--was not a motion for credit for time served, as he did not ask for any additional credit for
time served or allege that the credit already given him was incorrect. See I.C. § 18-309 (allowing
for credit for prejudgment incarceration when computing the applicable term of imprisonment).
Instead, Martinez only asked for forgiveness of the fines and fees imposed as part of his
sentence. Accordingly, we agree with the parties that the motion is effectively an I.C.R. 35(b)
motion for reduction of sentence and will address it as such.
       A motion for reduction of sentence under Rule 35(b) is essentially a plea for leniency,
addressed to the sound discretion of the court. State v. Knighton, 143 Idaho 318, 319, 144 P.3d
23, 24 (2006); State v. Allbee, 115 Idaho 845, 846, 771 P.2d 66, 67 (Ct. App. 1989). However,
such a motion must be filed “within 120 days of the entry of the judgment imposing sentence or
order releasing retained jurisdiction.” I.C.R. 35(b). The 120-day filing deadline described in
Rule 35(b) creates a jurisdictional limitation on the authority of the trial court to entertain
motions under the rule. State v. Fox, 122 Idaho 550, 552, 835 P.2d 1361, 1363 (Ct. App. 1992);
State v. Hocker, 119 Idaho 105, 106, 803 P.2d 1011, 1012 (Ct. App. 1991); State v. Parrish, 110
Idaho 599, 600, 716 P.2d 1371, 1372 (Ct. App. 1986). Without a timely filing, the trial court
cannot consider the motion. Fox, 122 Idaho at 552, 835 P.2d at 1363. Whether a court lacks
jurisdiction is a question of law over which we exercise free review. State v. Jones, 140 Idaho
755, 757, 101 P.3d 699, 701 (2004).
       Martinez acknowledged in his brief, and the record confirms, that his Rule 35(b) motion
was filed more than ten years after the entry of his judgment of conviction. As a result, the




                                                 2
district court lacked jurisdiction to grant Martinez’s untimely Rule 35(b) motion for reduction of
sentence. 2 Accordingly, the district court’s order denying Martinez’s motion is affirmed.
       Judge LANSING and Judge GUTIERREZ, CONCUR.




2
       Additionally, no defendant may file more than one motion seeking a reduction of
sentence. I.C.R. 35(b). This prohibition on successive motions for reduction of sentence under
Rule 35(b) is a jurisdictional bar. State v. Bottens, 137 Idaho 730, 733, 52 P.3d 875, 878 (Ct.
App. 2002). Martinez previously filed motions for reduction of his sentence in 2003 and 2006.
Thus, the district court also lacked jurisdiction because this was a successive motion for
reduction of sentence.
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