               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 43945

STATE OF IDAHO,                                 )    2016 Unpublished Opinion No. 761
                                                )
       Plaintiff-Respondent,                    )    Filed: November 4, 2016
                                                )
v.                                              )    Stephen W. Kenyon, Clerk
                                                )
CHAD L. WAHL,                                   )    THIS IS AN UNPUBLISHED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, Twin
       Falls County. Hon. Randy J. Stoker, District Judge.

       Appeal from order denying motion for reconsideration, dismissed.

       Eric D. Fredericksen, Interim State Appellate Public Defender; Andrea W.
       Reynolds, Deputy Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kale D. Gans, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

GUTIERREZ, Judge
       Chad L. Wahl appeals from the district court’s order denying Wahl’s motion for
reconsideration of the denial of Wahl’s motion seeking relief from judgment.1 He specifically
argues that enforcement of his restitution order is barred by the statute of limitations. For the
reasons explained below, we dismiss the appeal.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Wahl pled guilty to felony eluding a peace officer pursuant to Idaho Code § 49-
1404(2)(a), (c). At sentencing in July 2004, the district court ordered Wahl to pay restitution in


1
       Wahl’s notice of appeal states that he appeals from the district court’s denial of the
motion for reconsideration, but Wahl’s briefings challenge the district court’s denial of the
motion for relief from judgment.
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the amount of $5,215. In September 2009, the district court clerk filed an affidavit and notice of
failure to pay, noting that restitution was still outstanding. The notice further stated that if
payment was not made by October 2009, the clerk would pursue enforcement by way of a
collection agency.
       Pursuant to Idaho Rule of Civil Procedure 60(b),2 Wahl moved the district court for relief
from the restitution order in October 2015. Wahl argued the restitution order expired five years
after the date it was entered and was therefore void by the time the notice of failure to pay was
filed. In support of his argument, Wahl cited the 2004 version of Idaho Code § 10-1110, which
set forth a five-year expiration timeframe for judgment liens.
       The district court denied Wahl’s motion on October 29, 2015, reasoning that his motion
was untimely and, even if the motion was timely, the district court lacked jurisdiction to modify
the order. The district court further noted that a restitution order was not a judgment subject to
the statute of limitations. Finally, the district court held that even if the restitution order was
indeed subject to the five-year statute of limitations, that argument is an affirmative defense that
Wahl had the burden to prove, and such a defense constitutes a response to a plaintiff’s
complaint. Since there were no pleadings or an actual controversy, the district court determined
that ruling on the applicability of the statute of limitations would constitute an unconstitutional
advisory opinion.
       On December 21, 2015, Wahl filed a motion for reconsideration. The district court
denied the motion on December 23, 2015. Wahl filed his notice of appeal on January 19, 2016,
requesting that this Court vacate the district court’s order denying Wahl’s motion for relief from
judgment and remand with instructions to grant his motion.
                                                II.
                                           ANALYSIS
       As an initial matter, the State contends this Court lacks jurisdiction to consider the merits
of Wahl’s appeal. Whether a court lacks jurisdiction is a question of law over which appellate
courts exercise free review. State v. Juarez, 159 Idaho 91, 94, 356 P.3d 384, 387 (2015). Wahl
emphasizes that his appeal in this case is solely from the denial of his motion for reconsideration.



2
       Idaho Rule of Civil Procedure 60(b) governs relief from a final judgment, order, or
proceeding.
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       As such, we note that Wahl’s motion for reconsideration was untimely from the district
court’s order denying Wahl’s request for relief from judgment. In State v. Ferguson, 138 Idaho
659, 67 P.3d 1271 (Ct. App. 2002), we analyzed the timeliness of an appeal when the defendant
challenged a motion for reconsideration regarding a restitution order. We noted that “in the civil
arena, this Court has held that a motion under I.R.C.P. 59 to alter or amend the judgment or a
motion under I.R.C.P. 11(a)(2)(B) for reconsideration tolls the time period for the filing of a
notice of appeal as provided in I.A.R. 14(a).” Ferguson, 138 Idaho at 661, 67 P.3d at 1273. A
motion under I.R.C.P. 59(e), in order to be timely, must be filed within fourteen days after the
entry of the judgment. Ross v. State, 141 Idaho 670, 671, 115 P.3d 761, 762 (Ct. App. 2005).
Similarly, I.R.C.P. 11(a)(2)(B), before its amendment in 2016, read:
       A motion for reconsideration of any interlocutory orders of the trial court may be
       made at any time before the entry of final judgment but not later than fourteen
       (14) days after the entry of the final judgment. A motion for reconsideration of
       any order of the trial court made after entry of final judgment may be filed within
       fourteen (14) days from the entry of such order.
Agrisource, Inc. v. Johnson, 156 Idaho 903, 911, 332 P.3d 815, 823 (2014). Idaho Rule of Civil
Procedure 11(a)(2) has been amended and renumbered to I.R.C.P. 11.2, which has the same
fourteen-day time limit for motions to reconsider.
       Here, the final judgment was entered in July 2004. The district court denied Wahl’s
request for relief from judgment on October 29, 2015. Fifty-three days later, on December 21,
2015, Wahl filed his motion for reconsideration. Like we did in Ferguson, we look to the Idaho
Rules of Civil Procedure for guidance and hold that Wahl’s motion for reconsideration was
untimely because it was not filed within fourteen days of the denial of his motion for relief from
judgment. An untimely motion for reconsideration does not enlarge the period of time for the
direct appeal. Ade v. Batten, 126 Idaho 114, 116, 878 P.2d 813, 815 (Ct. App. 1994). Thus, the
appeal to this Court is untimely because the motion for reconsideration was untimely.
                                               III.
                                        CONCLUSION
       This Court lacks jurisdiction to consider Wahl’s issues on appeal because his motion for
reconsideration to the district court was untimely. We therefore dismiss this appeal.
       Chief Judge MELANSON and Judge HUSKEY CONCUR.




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