               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 37614

STATE OF IDAHO,                                  )      2010 Unpublished Opinion No. 697
                                                 )
       Plaintiff-Respondent,                     )      Filed: November 3, 2010
                                                 )
v.                                               )      Stephen W. Kenyon, Clerk
                                                 )
BENITO AGUAYO DIAZ,                              )      THIS IS AN UNPUBLISHED
                                                 )      OPINION AND SHALL NOT
       Defendant-Appellant.                      )      BE CITED AS AUTHORITY
                                                 )

       Appeal from the District Court of the Fifth Judicial District, State of Idaho, Blaine
       County. Hon. Robert J. Elgee, District Judge.

       Order denying Idaho Criminal Rule 35 motion for reduction of sentence,
       affirmed.

       Molly J. Huskey, 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.
                 ________________________________________________

                      Before LANSING, Chief Judge, GRATTON, Judge
                                 and MELANSON, Judge


PER CURIAM
       Benito Aguayo Diaz was convicted of felony driving under the influence, Idaho Code
§§ 18-8004, 18-8005(6), 18-8005(9). The district court imposed a unified eight-year sentence
with three years determinate. Diaz filed an Idaho Criminal Rule 35 motion, which the district
court denied. Diaz appeals from the denial of his Rule 35 motion.
       A Rule 35 motion is a request for leniency which is addressed to the sound discretion of
the sentencing 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). In presenting a Rule 35 motion,
the defendant must show that the sentence is excessive in light of new or additional information
subsequently provided to the district court in support of the motion. State v. Huffman, 144 Idaho

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201, 159 P.3d 838 (2007). Our focus on review is upon the nature of the offense and the
character of the offender. State v. Reinke, 103 Idaho 771, 772, 653 P.2d 1183, 1184 (Ct. App.
1982). Where a sentence is not illegal, the appellant must show that it is unreasonably harsh in
light of the primary objective of protecting society and the related goals of deterrence,
rehabilitation and retribution. State v. Broadhead, 120 Idaho 141, 145, 814 P.2d 401, 405
(1991), overruled on other grounds by State v. Brown, 121 Idaho 385, 825 P.2d 482 (1992);
State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct. App. 1982).
       Having reviewed the record, including the new information submitted with Diaz’s
Rule 35 motion, we find no abuse of discretion in the district court’s denial of the motion.
Accordingly, the district court’s order denying Diaz’s I.C.R. 35 motion is affirmed.




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