                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 38524

STATE OF IDAHO,                                  )     2012 Unpublished Opinion No. 365
                                                 )
        Plaintiff-Respondent,                    )     Filed: February 22, 2012
                                                 )
v.                                               )     Stephen W. Kenyon, Clerk
                                                 )
OSA JERIMIAH McDONALD,                           )     THIS IS AN UNPUBLISHED
                                                 )     OPINION AND SHALL NOT
        Defendant-Appellant.                     )     BE CITED AS AUTHORITY
                                                 )

        Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
        County. Hon. Thomas F. Neville, District Judge.

        Order denying motion to correct illegal sentence, affirmed.

        Osa Jerimiah McDonald, Boise, pro se appellant.

        Hon. Lawrence G. Wasden, Attorney General; Nicole L. Schafer, Deputy
        Attorney General, Boise, for respondent.
                  ________________________________________________
LANSING, Judge
        Osa Jerimiah McDonald appeals from the district court’s denial of his Idaho Criminal
Rule 35 motion to correct an illegal sentence.
        McDonald pleaded guilty to grand theft. On January 20, 2000, the district court imposed
a unified ten-year sentence with three years fixed, but suspended execution of the sentence and
placed McDonald on probation for ten years. Seven years later, after McDonald was found in
violation of probation, the district court extended McDonald’s probation through January 19,
2014.   On November 5, 2010, after another probation violation, the district court revoked
probation, reduced the fixed portion of the sentence to two years, and ordered the sentence
executed. Thereafter, McDonald filed an Idaho Criminal Rule 35 motion to correct his sentence
because it allegedly was illegal. The district court denied the motion, and McDonald appeals.
        McDonald asserts that the time he spent on probation constituted service of his sentence
of imprisonment, and therefore he had already fully served the sentence prior to the revocation of



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his probation.     He contends that his sentence began to run when it was pronounced on
January 20, 2000, and with credit for time served, his “full term release date” expired on or about
October 9, 2009.
       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); State v. Lee, 116 Idaho 515, 516, 777 P.2d 737, 738 (Ct. App. 1989). There are three
relevant Idaho statutes here that directly contradict McDonald’s assertions. First, Idaho Code
§ 18-309 provides:
               In computing the term of imprisonment, the person against whom the
       judgment was entered, shall receive credit in the judgment for any period of
       incarceration prior to entry of judgment, if such incarceration was for the offense
       or an included offense for which the judgment was entered. The remainder of the
       term commences upon the pronouncement of sentence and if thereafter, during
       such term, the defendant by any legal means is temporarily released from such
       imprisonment and subsequently returned thereto, the time during which he was at
       large must not be computed as part of such term.

(emphasis added). Similarly, Idaho Code § 20-209A provides:

              When a person is sentenced to the custody of the board of correction, his
       term of confinement begins from the day of his sentence. A person who is
       sentenced may receive credit toward service of his sentence for time spent in
       physical custody pending trial or sentencing, or appeal, if that detention was in
       connection with the offense for which the sentence was imposed. The time during
       which the person is voluntarily absent from the penitentiary, jail, facility under
       the control of the board of correction, or from the custody of an officer after his
       sentence, shall not be estimated or counted as a part of the term for which he was
       sentenced.

(emphasis added). Finally, Idaho Code § 19-2603, addressing revocation of probation, provides:

               When the defendant is brought before the court in such case, it may, if
       judgment has been withheld, pronounce any judgment which it could originally
       have pronounced, or, if judgment was originally pronounced but suspended, the
       original judgment shall be in full force and effect and may be executed according
       to law, and the time such person shall have been at large under such suspended
       sentence shall not be counted as a part of the term of his sentence, but the time of
       the defendant’s sentence shall count from the date of service of such bench
       warrant.



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(emphasis added). These statutes clearly establish that periods when an individual is at liberty on
probation must not be computed as part of the service of his term of imprisonment. Because
McDonald was not imprisoned when he was on probation, his sentence of imprisonment was not
being served at that time. See Taylor v. State, 145 Idaho 866, 869-70, 187 P.3d 1241, 1244-45
(Ct. App. 2008); State v. Climer, 127 Idaho 20, 22-24, 896 P.2d 346, 348-50 (Ct. App. 1995); In
re Chapa, 115 Idaho 439, 442-43, 767 P.2d 282, 285-86 (Ct. App. 1989); State v. Sutton, 113
Idaho 832, 834, 748 P.2d 416, 418 (Ct. App. 1987).
       McDonald also argues that the district court acted unlawfully when it extended his
probationary period to fourteen years on January 16, 2008. He contends that this amounted to
imposing a new sentence or increasing his sentence.            This assertion is without merit.
McDonald’s underlying term of imprisonment, a unified sentence of ten years with three years
fixed, did not change. Idaho Code § 20-222 provides that the period of probation may at any
time be extended by the court, as long as the total period of probation does not exceed the
maximum term of imprisonment for the underlying crime. McDonald’s probation term was
extended after he was found to be in violation of his probation conditions. When McDonald’s
sentence was imposed and suspended, and he was placed on probation, it was inherent within the
probation order that there could be consequences for violation of the conditions of probation,
including the possibility of an extension of the probation term pursuant to Idaho Code § 20-222.
Thus, the extension of his probation term was not a new sentence, but was adjunct to his original
probation terms and a consequence of violating them.
       Similarly, the district court did not illegally “resentence” McDonald when it revoked his
probation.   The prospect that probation could be revoked for a violation of McDonald’s
probation terms was an inherent component of the sentence as originally imposed and suspended.
       McDonald next asserts that he has been subjected to double jeopardy. The Double
Jeopardy Clause of the United States Constitution specifies that no person shall “be subject for
the same offence to be twice put in jeopardy of life or limb.” U.S. CONST. amend V. This
guarantee includes protection against multiple criminal punishments for the same offense.
Schiro v. Farley, 510 U.S. 222, 229 (1994); State v. McKeeth, 136 Idaho 619, 622, 38 P.3d 1275,
1278 (Ct. App. 2001). It is well established, however, that revocation of probation does not
impose an additional punishment for the crime, for it involves only the enforcement of
conditions already imposed in the original sentencing proceeding when probation was granted.


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Gibson v. Bennett, 141 Idaho 270, 276, 108 P.3d 417, 423 (Ct. App. 2005). The United States
Supreme Court has stated that “there is no double jeopardy protection against revocation of
probation and the imposition of imprisonment.” United States v. DiFrancesco, 449 U.S. 117,
137 (1980).
       Finally, McDonald asserts that the district court’s actions violated various provisions of
the federal Sentencing Reform Act of 1984. These federal statutes address sentencing in federal
courts for federal crimes; they have no application to state court proceedings for violation of
state criminal laws.
       McDonald’s claim that the sentence he is serving is illegal is without merit. The district
court’s order denying the motion to correct an illegal sentence is therefore affirmed.
       Chief Judge GRATTON and Judge MELANSON CONCUR.




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