               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 40881

STATE OF IDAHO,                                  )      2013 Unpublished Opinion No. 732
                                                 )
       Plaintiff-Respondent,                     )      Filed: October 31, 2013
                                                 )
v.                                               )      Stephen W. Kenyon, Clerk
                                                 )
FREDDY T. TELLEZ,                                )      THIS IS AN UNPUBLISHED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    to   correct   illegal
       sentence, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Ben Patrick McGreevy,
       Deputy Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

                     Before GUTIERREZ, Chief Judge; LANSING, Judge;
                                 and GRATTON, Judge

PER CURIAM
       Freddy T. Tellez filed an Idaho Criminal Rule 35 motion to correct an illegal sentence,
which the district court denied. On appeal, Tellez asserts the district court erred by denying the
motion. The appeal is based not on the sentence imposed, but rather on the argument that the
court lacked subject matter jurisdiction. Here, a grand jury issued an indictment for first degree
murder. However, pursuant to a plea agreement, the State filed a second amended indictment
charging second degree murder, to which Tellez entered a guilty plea and was sentenced. Tellez
asserts the district court lacked subject matter jurisdiction because the second amended
indictment charged a crime that was not an included offense under the original indictment and a
grand jury never voted for the indictment for second degree murder.


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       It is well established that a charge of first degree murder includes the offense of second
degree murder. State v. Goodmiller, 86 Idaho 233, 240-41, 386 P.2d 365, 369 (1963) (“[T]his
court has repeatedly held that murder of the second degree and manslaughter are necessarily
included in the charge of murder of the first degree . . . .”); State v. Hix, 58 Idaho 730, 735, 78
P.2d 1003, 1005 (1938) (“It is the established law of this state that every charge of murder
necessarily includes the offense of murder in the first degree, murder in the second degree, and
manslaughter . . . .”); see also State v. Lindquist, 99 Idaho 766, 771, 589 P.2d 101, 106 (1979)
(“When the defendant was found guilty of first degree murder, he was necessarily found guilty of
the lesser included offense of second degree murder.”); State v. Sanger, 108 Idaho 910, 913, 702
P.2d 1370, 1373 (Ct. App. 1985) (“Sanger was not convicted of first degree murder, instead he
was found guilty of the lesser included offense of second degree murder.”). Mindful that the
State may amend an indictment to allege an included offense, and that second degree murder is
an included offense of first degree murder, Tellez nonetheless asserts the district court lacked
subject matter jurisdiction. Because Tellez has failed to show error in the denial of his motion,
the district court’s order denying Tellez’s Rule 35 motion for correction of an illegal sentence is
affirmed.




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