                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 39252

STATE OF IDAHO,                                   )      2012 Unpublished Opinion No. 558
                                                  )
       Plaintiff-Respondent,                      )      Filed: July 19, 2012
                                                  )
v.                                                )      Stephen W. Kenyon, Clerk
                                                  )
DANIEL FRANCIS LUTE,                              )      THIS IS AN UNPUBLISHED
                                                  )      OPINION AND SHALL NOT
       Defendant-Appellant.                       )      BE CITED AS AUTHORITY
                                                  )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Ronald J. Wilper, District Judge.

       Order denying motion to expunge Idaho Department of Correction’s copy of
       presentence investigation report, affirmed.

       Daniel Francis Lute, Boise, pro se appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
LANSING, Judge
       Daniel Francis Lute appeals from the district court’s denial of his motion seeking an
order directing the Idaho Department of Correction (IDOC) to “expunge” records, including a
presentence investigation report, retained by it as a result of Lute’s prior conviction that has been
vacated. We affirm.
       In 1993 Lute pleaded guilty to battery with intent to commit a serious felony
(kidnapping), Idaho Code § 18-911. A presentence investigation report (PSI) was prepared, and
the district court imposed a five-year determinate sentence, to run concurrently with a sentence
that Lute was already serving. In compliance with Idaho Code § 20-237, a copy of the PSI was
forwarded to the IDOC. In 2011, the Idaho Supreme Court vacated Lute’s conviction on the
reasoning that the district court never had jurisdiction over the case because the indictment
against him was entered by a grand jury whose term had expired. State v. Lute, 150 Idaho 837,



                                                 1
840-41, 252 P.3d 1255, 1258-59 (2011). In compliance with our Supreme Court’s directive, the
district court entered an order vacating the conviction.
       On or about July 21, 2011, Lute 1 wrote a letter to the district court informing it that the
IDOC continued to “illegally” use the PSI from his vacated battery conviction. Lute asked the
court to order the IDOC to “expunge” its copy of the PSI. The district court treated the letter as a
motion and, after giving notice to the Ada County Prosecutor, denied the request. Lute appeals.
       Idaho Code § 20-237 requires that “a copy of the presentence investigation report, if
any . . . shall be delivered into the custody of the director [of the IDOC] or his representative at
the time of or prior to the delivery of the convicted person to the department.” Thus, the IDOC
properly acquired possession of Lutes’s PSI. Whether a court may order the IDOC to surrender
a PSI upon the defendant’s conviction being vacated was answered by the Idaho Supreme Court
in State v. Moore, 150 Idaho 17, 19-20, 244 P.3d 161, 163-64 (2010).                 There, after the
defendant’s conviction was vacated, he moved the district court to order the IDOC to return its
copy of his PSI, which motion was denied. On appeal, our Supreme Court held that no statute
authorized a court to demand the return of a PSI, and that in the absence of a statute limiting the
period of time that the IDOC may retain its copy of a PSI, the judicial branch had no authority to
dictate the record retention policies of an agency in the executive branch of our state
government. Id. The Court affirmed the district court’s ruling that it lacked authority to order
the IDOC to return its copy of the PSI.
       Regardless of how Lute couches his request, as one seeking expungement or return of the
PSI, what he was seeking is a court order directing the IDOC to destroy its copy of his PSI or to
return the IDOC’s copy of the PSI to the court so that it can be destroyed. Moore controls as our
Supreme Court held in that case that a district court has no authority to do so. 2
       The district court’s order denying the motion is affirmed.
       Judge GUTIERREZ and Judge MELANSON CONCUR.




1
       Lute apparently remains incarcerated on his other conviction.
2
       If, as Lute contends, the Commission of Pardons and Parole is unaware that his
conviction was vacated, he can remedy this by sending the Commission a copy of the Supreme
Court’s decision and/or the district court’s order vacating the judgment.

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