                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 37640

STATE OF IDAHO,                                   )      2011 Opinion No. 51
                                                  )
       Plaintiff-Respondent,                      )      Filed: August 16, 2011
                                                  )
v.                                                )      Stephen W. Kenyon, Clerk
                                                  )
RICHARD LEE BROWN,                                )
                                                  )
       Defendant-Appellant.                       )
                                                  )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Michael E. Wetherell, District Judge. Hon. Cheri C. Copsey,
       District Judge

       Judgment of conviction and unified sentence of eight years, with a minimum
       period of confinement of one year, for failure to register as a sex offender,
       affirmed.

       Molly J. Huskey, State Appellate Public Defender; Jason C. Pintler, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Jennifer E. Birken, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GRATTON, Chief Judge
       Richard Lee Brown appeals his judgment of conviction for failure to register as a sex
offender, Idaho Code § 18-8307. We affirm.
                                                 I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Richard Lee Brown pled guilty, in this case, to failure to register as a sex offender, I.C.
§ 18-8307. At the time of Brown’s plea he was on probation, in a separate case, for grand theft.
The day before the sentencing in this case the district court, in the grand theft case, revoked
Brown’s probation because of his guilty plea in this case, executed a seven-year unified sentence
with two years determinate, and retained jurisdiction. Thereafter, the district court in this case
imposed an eight-year unified sentence with one year determinate, to run consecutive to Brown’s



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sentence for grand theft. Based upon the district court’s interpretation of I.C. § 18-8311(1), the
court in this case indicated that it had no ability to retain jurisdiction and, in fact, was required to
and did revoke Brown’s probation in the grand theft case and relinquished that court’s
jurisdiction. Brown now appeals.
                                                   II.
                                            DISCUSSION
        Brown claims that the district court abused its discretion because it erroneously
interpreted I.C. § 18-8311(1) to preclude the court from retaining jurisdiction in this case. In this
appeal, Brown does not seek review of the district court’s order revoking Brown’s probation and
relinquishing the grand theft court’s jurisdiction. 1
        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).
        This Court exercises free review over the application and construction of statutes. State
v. Reyes, 139 Idaho 502, 505, 80 P.3d 1103, 1106 (Ct. App. 2003). Where the language of a
statute is plain and unambiguous, this Court must give effect to the statute as written, without
engaging in statutory construction. State v. Rhode, 133 Idaho 459, 462, 988 P.2d 685, 688
(1999); State v. Burnight, 132 Idaho 654, 659, 978 P.2d 214, 219 (1999); State v. Escobar, 134
Idaho 387, 389, 3 P.3d 65, 67 (Ct. App. 2000). The language of the statute is to be given its
plain, obvious, and rational meaning. Burnight, 132 Idaho at 659, 978 P.2d at 219. If the
language is clear and unambiguous, there is no occasion for the court to resort to legislative
history or rules of statutory interpretation. Escobar, 134 Idaho at 389, 3 P.3d at 67. When this

1
        Brown belatedly filed a notice of appeal in the grand theft case asserting that the court in
this case did not have jurisdiction to revoke probation and relinquish jurisdiction in the grand
theft case. However, the Idaho Supreme Court dismissed the appeal as untimely. Therefore,
Brown states that he “does not raise as a separate issue on appeal that the district court lacked the
jurisdiction to re-revoke his probation and execute his sentence” in the grand theft case; and we
offer no opinion as to whether I.C. § 18-8311(1) required that the retention of jurisdiction in the
grand theft case be terminated without allowing the presiding judge in that case to decide
whether the sentence in that case should be modified upon relinquishment of jurisdiction.


                                                   2
Court must engage in statutory construction, it has the duty to ascertain the legislative intent and
give effect to that intent. Rhode, 133 Idaho at 462, 988 P.2d at 688. To ascertain the intent of
the legislature, not only must the literal words of the statute be examined, but also the context of
those words, the public policy behind the statute, and its legislative history. Id. It is incumbent
upon a court to give a statute an interpretation which will not render it a nullity. State v. Beard,
135 Idaho 641, 646, 22 P.3d 116, 121 (Ct. App. 2001). Constructions of a statute that would
lead to an absurd result are disfavored. State v. Doe, 140 Idaho 271, 275, 92 P.3d 521, 525
(2004); State v. Yager, 139 Idaho 680, 690, 85 P.3d 656, 666 (2004).
Idaho Code § 18-8311(1) provides:
       An offender subject to registration who knowingly fails to register, verify his
       address, or provide any information or notice as required by this chapter shall be
       guilty of a felony and shall be punished by imprisonment in the state prison
       system for a period not to exceed ten (10) years and by a fine not to exceed five
       thousand dollars ($5000). If the offender is on probation or other supervised
       release or suspension from incarceration at the time of the violation, the probation
       or supervised release or suspension shall be revoked and the penalty for violating
       this chapter shall be served consecutively to the offender’s original sentence.

As noted, the district court indicated that the statute required imposition of a prison term
consecutive to the grand theft sentence and that it precluded any ability to retain jurisdiction. In
addition, the district court determined that it was required to revoke Brown’s probation in the
grand theft case and relinquish jurisdiction in that case. Brown contends that the statute contains
no express language precluding retention of jurisdiction. Brown further argues that the statute
does not impose a mandatory minimum sentence which would preclude suspension of sentence.
       The State asserts that whether or not the statute allows retention of jurisdiction, in this
case, the district court was effectively precluded from retaining jurisdiction. The State argues
that since Brown’s grand theft sentence was executed, Brown was required to serve at least the
two-year determinate term in that case. Consequently, the district court in this case, as a
practical matter, could not retain jurisdiction because the period of retained jurisdiction would
run prior to the expiration of Brown’s two-year determinate term. Since it is uncontested that the
statute requires a mandatory sentence of imprisonment in this case to run consecutive to the
imprisonment in the grand theft case, the court could not retain jurisdiction in this case. We
agree. The statute requires a sentence of imprisonment in this case to be served consecutive to




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the grand theft sentence. 2 The district court could not retain jurisdiction consecutive to the grand
theft sentence. A period of retained jurisdiction begins to run at the time of sentencing. I.C.
§ 19-2601(4).
                                                III.
                                         CONCLUSION
       Brown failed to demonstrate that the district court abused its discretion in failing to
retain jurisdiction. Therefore, Brown’s judgment of conviction and sentence are affirmed.
       Judge LANSING and Judge GUTIERREZ CONCUR.




2
        Brown argues that a period of retained jurisdiction is a period of imprisonment not
exceeding ten years which would satisfy the sentencing requirements of the statute. However,
because the retained jurisdiction period would begin upon sentencing, it could not be consecutive
to the sentence in the grand theft case, as required by the statute.


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