                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                           Docket No. 40044

STATE OF IDAHO,                                    )    2014 Unpublished Opinion No. 541
                                                   )
       Plaintiff-Respondent,                       )    Filed: June 3, 2014
                                                   )
v.                                                 )    Stephen W. Kenyon, Clerk
                                                   )
BRUCE L. DIEHL,                                    )    THIS IS AN UNPUBLISHED
                                                   )    OPINION AND SHALL NOT
       Defendant-Appellant.                        )    BE CITED AS AUTHORITY
                                                   )

       Appeal from the District Court of the Seventh Judicial District, State of Idaho,
       Clark County. Hon. Joel E. Tingey, District Judge.

       Order of probation and order denying I.C.R. 35 motion for reduction of
       sentence, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Spencer J. Hahn, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
LANSING, Judge
       Bruce L. Diehl was convicted of fleeing or attempting to elude a police officer and felony
malicious injury to property. The court retained jurisdiction and ultimately placed Diehl on
probation. Diehl argues that placing him on probation without a hearing violates court rules,
statutes, and constitutional provisions.
                                                  I.
                                           BACKGROUND
       Diehl was convicted of fleeing or attempting to elude a peace officer, Idaho Code § 49-
1404, and felony malicious injury to property, I.C. § 18-7001(2).          The court imposed an
aggregate sentence of four years in prison with two years fixed, but retained jurisdiction for up to
365 days.     On February 9, 2012, and in line with an Idaho Department of Correction
recommendation, the court placed Diehl on probation. While the precise procedure used is not


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clear from the record, it appears that no hearing was conducted prior to the probation order, and
the parties agree that the decision was rendered without Diehl being present. The record contains
no direct evidence that Diehl ever consented to the terms of probation, including terms that
purport to waive certain constitutional rights.
       On April 12, 2012, the State filed a report alleging five probation violations, including
drug possession and use, firearm possession, and failure to report to probation officers. 1 In
response, in June 2012, Diehl filed a pro se “Motion for Correction of Illegal Sentence” that
asserted, inter alia, that the court had violated the law by issuing an order placing Diehl on
probation without Diehl being present. His motion requested that his “sentence be set aside by
the court.” The district court denied the motion. It reasoned that Diehl was present at the
original sentencing proceedings when the court retained jurisdiction in order to determine
whether probation was appropriate and that in placing Diehl on probation after a period of
retained jurisdiction, the court had acted consistent with its original disposition. Accordingly,
the district court held that placing Diehl on probation was not a “modification of the sentence”
such that his presence was required.
                                                  II.
                                            ANALYSIS
       On appeal, Diehl argues that the district court violated Idaho law and Diehl’s
constitutional rights by placing him on probation in absentia and without his consent, and that
consequently, the order placing him on probation must be vacated and declared void ab initio. In
the alternative, he argues that even if it was permissible to place him on probation in his absence,
the waiver of his Fourth Amendment rights in the terms of probation could not be imposed in
absentia and without his consent, making that waiver void ab initio.
       In his appellate argument, Diehl does not posit the issue as error in the denial of his
“Motion for Correction of Illegal Sentence,” but rather presents his argument as a direct attack
on the order placing him on probation, without acknowledging that the only way in which these
issues were raised below was in the motion. We surmise that Diehl does not directly argue error
in the denial of the motion because the motion was untimely, as explained below. Further, he did


1
       The State later sought and obtained an order dismissing the probation violations, without
prejudice, noting that the federal government was bringing charges against Diehl.


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not respond to the State’s argument on appeal that his claim of error was not preserved by a
timely motion in the trial court.
       Diehl’s pro se motion asserted that his sentence was unlawful because the probation was
imposed without Diehl being present. The motion can only be characterized as one brought
pursuant to Idaho Criminal Rule 35, which authorizes motions to correct or reduce a sentence.
As is relevant here, Rule 35 permits a defendant to challenge “a sentence that is illegal from the
face of the record” or a sentence “imposed in an illegal manner.” A motion challenging a
sentence as illegal may be brought “at any time,” I.C.R. 35(a), but a motion contending that a
sentence was imposed in an illegal manner generally must be filed within 120 days of the
judgment or order complained of. I.C.R. 35(b).
       A sentence is “illegal” within the meaning of Rule 35 only if it is in excess of statutory
limits or otherwise contrary to applicable law. State v. Peterson, 148 Idaho 610, 613, 226 P.3d
552, 555 (Ct. App. 2010); State v. Alsanea, 138 Idaho 733, 745, 69 P.3d 153, 165 (Ct. App.
2003). Diehl does not argue that the sentence itself, probation, is not authorized by law. Rather,
the claim in Diehl’s Rule 35 motion was that the sentence was imposed in an illegal manner.
Consequently, Diehl’s motion was time-barred because it was not filed within 120 days of the
district court’s order placing him on probation. Diehl was placed in probation on February 9,
2012, he signed his Rule 35 motion on June 18, 2012, and it was filed with the district court on
June 20, 2012. The 120-day period to file a motion to challenge a sentence imposed in an illegal
manner expired on June 8, 2012.
       Diehl seems to attempt to avoid the time-bar of the Rule 35 motion by ignoring the
motion in his argument on appeal and instead directly arguing error in the order placing him on
probation. However, he made no objection or challenge to that order in the proceedings below
except through the Rule 35 motion. An alleged error that was not raised below generally may
not be considered for the first time on appeal. 2 State v. Fodge, 121 Idaho 192, 195, 824 P.2d
123, 126 (1992); State v. McGiboney, 152 Idaho 769, 772, 274 P.3d 1284, 1287 (Ct. App. 2012).
We acknowledge that Diehl could not have made a contemporaneous objection to the probation
order because he was not present, but he could have objected through a timely Rule 35 motion, a
motion objecting to the terms of probation, see State v. Ruck, 155 Idaho 475, 480, 314 P.3d 157,



2
       Diehl does not argue that the sentence constituted fundamental error.

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162 (2013) (holding that the court has the authority to amend terms of probation pursuant to I.C.
§ 20-221); State v. Wardle, 137 Idaho 808, 810, 53 P.3d 1227, 1229 (Ct. App. 2002) (reviewing
a motion challenging certain terms of probation); State v. Breeden, 129 Idaho 813, 816, 932 P.2d
936, 939 (Ct. App. 1997) (rejecting a claim because a defendant “never filed a motion for
modification of this probation condition on the ground of impossibility”), or a motion declining
probation and asking for execution of his sentence. State v. McCool, 139 Idaho 804, 807, 87
P.3d 291, 294 (2004) (“A defendant may decline probation when he [or she] deems its conditions
too onerous, and demand instead that he [or she] be sentenced by the court.” (quoting Franklin v.
State, 87 Idaho 291, 298, 392 P.2d 552, 555 (1964)); State v. Josephson, 125 Idaho 119, 122, 867
P.2d 993, 996 (Ct. App. 1993) (holding that a probationer may decline probation at any time and
discussing the import of doing so or not doing so when a defendant has been searched pursuant
to a term of probation). Having done none of these, Diehl has not preserved for review the issues
he attempts to raise on appeal.
       Accordingly, the district court’s order placing Diehl on probation and its order denying
his Rule 35 motion are affirmed.
       Chief Judge GUTIERREZ and Judge MELANSON CONCUR.




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