                 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                         Docket No. 45199

STATE OF IDAHO,                                  )
                                                 ) Filed: June 20, 2018
         Plaintiff-Appellant,                    )
                                                 ) Karel A. Lehrman, Clerk
v.                                               )
                                                 )
RANDALL JEROME BILLUPS,                          )
                                                 )
         Defendant-Respondent.                   )
                                                 )

         Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
         County. Hon. Lynn G. Norton, District Judge.

         Order granting motion to dismiss, reversed and case remanded.

         Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
         Attorney General, Boise, for appellant. Kenneth K. Jorgensen argued.

         R. Thomas Curl, Boise, for respondent.
                  ________________________________________________

WALTERS, Judge Pro Tem
         The State appeals from the district court’s order granting Randall Jerome Billups’ motion
to dismiss a charge of conspiracy to traffic in heroin following a reversal of his conviction. The
State argues the district court erred in concluding that the absence of the word “remand” in the
Court of Appeals’ opinion mandated dismissal of the charge against Billups. For the reasons
provided below, we reverse and remand.
                                                 I.
                      FACTUAL AND PROCEDURAL BACKGROUND
         In the underlying case, Billups was charged with conspiracy to traffic in heroin. Prior to
trial, Billups filed a motion to suppress statements made by him and text messages obtained from
his phone after he was in custody. The district court denied Billups’ motion, and he proceeded to
trial.   The State’s case-in-chief consisted of the testimony of six witnesses, including the
testimony of Billups’ alleged co-conspirator, and thirty-four exhibits, several of which were

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photos of text messages from Billups’ phone. At the trial’s conclusion, the jury found Billups
guilty, and the district court entered a judgment of conviction. Billups appealed.
       On appeal, Billups did not challenge his judgment of conviction based on evidentiary
sufficiency, but rather challenged only the district court’s order denying his motion to suppress
Billups’ post-arrest statements and text messages obtained from his phone while he was in
custody. Billups did not challenge any other evidence admitted at trial. In the previous appeal,
this Court solely reviewed the district court’s order regarding Billups’ post-arrest statements and
text messages after he was in custody. State v. Billups, Docket No. 43571 (Ct. App. Mar. 9,
2017) (Billups I) (unpublished). In conclusion, we stated:
              The district court erred in denying Billups’ motion to suppress because
       Billups’ illegal arrest rendered his subsequent incriminating statements and text
       messages inadmissible. We therefore reverse Billups’ judgment of conviction for
       felony conspiracy to traffic heroin.
Id. The opinion did not contain the word “remand.” A remittitur was issued, stating that the
district court must “forthwith comply with the directive of the Unpublished Opinion, if any
action is required.”
       At a status conference following the appeal, the State requested the case be set for a new
trial. Billups objected and moved to dismiss, which the district court granted. In dismissing the
case, the district court stated: “This is a judgment of conviction. It was reversed after trial. It
was not reversed and remanded, so with that, I am going to dismiss the case and discharge the
defendant.” The State filed a motion to reconsider, arguing that proper application of Idaho
Appellate Rule 38(c) should have resulted in the district court vacating the judgment of
conviction, entering an order to suppress the pertinent evidence, and proceeding forward as if the
suppression had originally been granted, which would allow for a new trial if the State elected to
proceed. The district court denied the motion to reconsider, determining that it did not have
jurisdiction to proceed with the case and agreed with Billups that dismissal was proper because
the Court of Appeals did not “reverse and remand,” rather, it merely “reversed.” The State
timely appeals.
                                                II.
                                           ANALYSIS
       The State argues the district court ignored clear precedent in dismissing the charge and
discharging Billups. The State reasons that nothing in the Billups I opinion precluded the case


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from proceeding to a new trial. The State maintains that when faced with a case after reversal of
suppression denial, a trial court has the authority to take both actions that it is specifically
directed to take, as well as those which are subsidiary to the directives of the appellate court.
Here, whereas a new trial was subsidiary to the relief of vacating the judgment and granting
suppression, the district court erred in dismissing the charge.
       Billups argues that our opinion specifically omitted the words “reversed and remanded,”
and therefore no direction was given to the district court to comply with other than to reverse the
judgment of conviction. Further, Billups argues this Court was unambiguous in our directive. In
support, Billups points to the portion of our opinion which states:
       Billups’ arrest was based merely on his presence in A.H.’s vehicle. Besides his
       presence in the car, nothing tied Billups to the package. Billups’ mere presence
       does not lend itself to an honest and strong presumption that Billups was guilty of
       any crime. An officer could not reasonably infer, based on the totality of the
       circumstances, that Billups was involved in criminal activity.
               . . . In sum, the totality of the circumstances does not demonstrate a
       probability or substantial chance that Billups was involved in any criminal
       activity. Accordingly, the detective lacked probable cause to arrest Billups before
       transporting Billups to the police station for questioning.
Billups argues that this is an unambiguous statement that arrest was improper and that we clearly
intended to release Billups from the charge of conspiracy to traffic in heroin. He also argues that
since we omitted the word remand, the requirement to “comply forthwith” was adhered to.
       Generally speaking, a remittitur terminates appellate jurisdiction and reinstates the lower
court’s jurisdiction over a case. Remittitur is defined as “a sending back from an appellate or
superior [court] to a trial or inferior court of a case and its record for further proceedings (as
additional findings of fact) or for entry of a final judgment in accordance with the instructions or
the decision of the appellate or superior court.” WEBSTER’S THIRD INTERNATIONAL DICTIONARY
1921 (1993). Upon issuance of a remittitur, the district court is instructed to take actions that are
consistent with the opinion issued by the appellate court. See I.A.R. 38(c).
       As the district court pointed out, when a conviction is reversed, the district court must
take action in order for the appellate opinion to take effect. This means that the case requires
remand to the district court, at least to vacate the judgment. The issue is whether the district
court was precluded from taking any other action. Idaho Appellate Rule 38(c) provides:
              When the opinion filed has become final in accordance with this rule, the
       Clerk of the Supreme Court shall issue and file a remittitur with the district court
       or administrative agency appealed from and mail copies to all parties to the appeal
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       and to the presiding district judge or chairman of the agency. The remittitur shall
       advise the district court or administrative agency that the opinion has become
       final and that the district court or administrative agency shall forthwith comply
       with the directive of the opinion.
(Emphasis added.) The application of a procedural rule is a question of law, which we review de
novo. See State v. Castro, 145 Idaho 173, 175, 177 P.3d 387, 389 (2008); Smith by and through
Smith v. Treasure Valley Seed Co., LLC, 161 Idaho 107, 109, 383 P.3d 1277, 1279 (2016). As
I.A.R. 38(c) states in relevant part: “the district court or administrative agency shall forthwith
comply with the directive of the opinion.” (Emphasis added.) This is a positive statement in that
the district court is required to comply with the appellate directive. It does not carry with it the
idea that silence likewise directs a district court, as Billups suggests. Because the opinion
reversed the judgment of conviction, the directive of the opinion was for the district court to
enter an order setting aside the judgment of conviction and enter an order to suppress the
pertinent evidence obtained as a result of the illegal arrest.
       On the first appeal, we extensively discussed the circumstances leading up to Billups’
arrest and the evidence resulting from his arrest; however, we provided no discussion regarding
retrial. Indeed, there is absolutely no discussion regarding untainted evidence or the sufficiency
of evidence of Billups’ guilt. We limited our discussion to the temporal limits of Billups’ arrest,
holding that, based on the totality of the circumstances, an officer could not reasonably infer that,
at the time of his arrest, Billups was involved in criminal activity, and therefore there was no
probable cause to justify his arrest. In Billups I, we made no comment pertaining to the ultimate
question of whether there was sufficient evidence to convict Billups of conspiracy to traffic in
heroin, as that issue was not before this Court. Likewise, we made no comment, as the State
requests us to conclude, as to whether a new trial was required or warranted, but rather merely
stated: “the detective lacked probable cause to arrest Billups before transporting Billups to the
police station for questioning.” Id. Accordingly, the statements made by Billups and the text
messages from his phone required suppression.
       Contrary to Billups’ argument, our holding in Billups I did not establish that the words
chosen by the Court were intended to preclude retrial. Rather, the holding supported a reversal
of the district court’s order denying suppression of the evidence obtained as a result of Billups’
illegal arrest and nothing more. Additionally, Billups’ reliance on the strict reading of I.A.R. 38
is not aligned with the Idaho Supreme Court’s conclusion that the rule is merely the codification


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of the law of the case doctrine. State v. Hawkins, 155 Idaho 69, 74, 305 P.3d 513, 518 (2013).
Apart from requiring that lower courts must follow the law articulated by the higher court when
dealing with cases on remand, I.A.R. 38 merely provides the means by which the appellate
opinion and case is resolved and transferred back to the lower court. Regardless of a specific
directive to remand the case, this Court generally reversed Billups’ conviction thereby directing
the district court to reverse its denial of the suppression motion. Therefore, the case was returned
to its status prior to that denial.
          A determination that an error was made in the pretrial stages does not address whether
the evidence was insufficient to sustain a guilty verdict. Burks v. United States, 437 U.S. 1, 8
(1978). It solely addresses the issue of whether the evidence should have been admitted in the
first instance. When an appellate court determines that evidence was admitted in error, no
determination ordinarily is made as to whether the remaining admissible evidence is sufficient,
which would require acquittal and/or dismissal of the charges.          A reversal of a criminal
conviction due to a trial error does not imply anything with respect to a defendant’s guilt or
innocence, nor does it constitute a decision that the State failed to prove its case. Id. at 15.
Instead, it merely reverses the judgment, and the case stands as if the trial has not yet been held,
dating back to the time the reversed order or judgment was entered. Though it may often be, as
the State concedes, that without the suppressed evidence the State would have insufficient
admissible evidence to proceed to a new trial, this is not a question that appellate courts are best
suited to determine. The critical point at issue is whether the error on appeal was dispositive of
the case in its entirety or whether the error merely addressed one aspect of the case. See Idaho
Gold Dredging Corp. v. Boise Payette Lumber Co., 54 Idaho 270, 275-76, 30 P.2d 1076, 1078
(1934).
          Billups argues that the Court’s intent to release him from both his conviction and the
charges against him is present in our statement, “In sum, the totality of the circumstances does
not demonstrate a probability or substantial chance that Billups was involved in any criminal
activity.” This statement was temporal: “the detective lacked probable cause to arrest Billups
before transporting Billups to the police station for questioning.” Billups, Docket No. 43571.
After looking at the totality of the circumstances that existed at the time of Billups’ arrest, we
concluded there was not probable cause to arrest him. It does not follow that evidence did not
surface later to establish probable cause that Billups committed the offense.          Instead, our

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conclusion was limited to the precise issue on appeal in the subsequent appeal: whether there
was probable cause to arrest Billups.
       Over the years, we have concluded our opinions addressing only motions to suppress in
various ways; i.e., reversed, reversed and remanded, reversed with instructions, and reversed the
order, vacated the judgment, and remanded. While it may be better to be consistent in our
language, the different terms do not change the effect of our holding on the progression of the
case. Though specific mandates may be requested of the appellate courts, we are not always in
the best situation to determine the precise nature of the proceedings going forward after the
remittitur is issued and the case remanded to the district court. The imperative, in determining
the directive from the appellate court, is to look at what the appeal is challenging. The challenge
in Billups I was from a motion to suppress. Billups did not challenge his conviction on the basis
of insufficient evidence; rather, he challenged the suppression motion.         Further, the relief
requested by Billups in his reply brief from his underlying criminal appeal was that this Court
“vacate his conviction and sentence, reverse the order denying his motion to suppress, and
remand his case for further proceedings.” Whereas that was the requested relief, we had two
alternatives in our resolution of the previous appeal: (1) specifically grant the exact requested
relief or (2) deny the specified relief with an explanation as to why we were providing alternative
relief than that requested. As there was only one resolution requiring an explanation, and an
explanation was absent in our conclusion of the previous appeal, we simply granted the precise
relief which Billups requested.
       With the reversal of the ruling on the suppression motion, the case properly would be
returned to the district court in order to sort out where it should proceed from there. If the
prosecutor determines there is sufficient evidence to proceed, a new trial may be appropriate. If,
upon suppression, insufficient evidence exists, then the State would be compelled to dismiss the
case. However, an appellate court is in no position to make such a determination. Rather, the
determination is properly left to the lower courts.
       The State is correct that an appellate opinion that reverses a judgment of conviction based
on an erroneous order denying a motion is an implicit directive to grant the motion. Therefore,
within our holding in Billups I was an implicit directive to the district court to enter an order of
suppression of the evidence that was obtained as a result of Billups’ illegal arrest. The remittitur
provides that the district court “forthwith comply with the directive of the Unpublished Opinion,

                                                 6
if any action is required.” The directive of the unpublished opinion was to reverse the judgment
of conviction and enter an order suppressing the evidence obtained as a result of Billups’ illegal
arrest. That is the “action required.” However, there is nothing in our opinion which limited the
authority of the district court or stripped it of its jurisdiction over the case. The case was merely
restored to the posture it would have been before the error was made. Therefore, absent a
disposal of the case in its entirety by the appellate court, reversal of the judgment did not
foreclose a new trial.
                                                III.
                                         CONCLUSION
       The absence of the term “remand” in an appellate opinion does not preclude further trial
court proceedings. If the appeal challenges a pretrial order, the case is then remanded to that
pretrial status, leaving the State and the court to determine whether proceeding forward with a
new trial is appropriate.    The district court did not make a determination that there was
insufficient evidence, but merely dismissed the case for lack of jurisdiction. This was error. The
district court did not lack jurisdiction. Accordingly, the district court’s grant of the motion to
dismiss is reversed, and the case is remanded for further proceedings consistent with this
opinion.
       Chief Judge GRATTON and Judge HUSKEY CONCUR.




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