                   IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                           Docket No. 45226

STATE OF IDAHO,                                     )      2018 Unpublished Opinion No. 408
                                                    )
           Plaintiff-Respondent,                    )      Filed: April 3, 2018
                                                    )
v.                                                  )      Karel A. Lehrman, Clerk
                                                    )
JORGE CONTRERAS,                                    )      THIS IS AN UNPUBLISHED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. Deborah A. Bail, District Judge.

           Order denying I.C.R. 35 motion for correction of illegal sentence, affirmed.

           Jorge Contreras, Boise, pro se appellant.

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

                        Before GRATTON, Chief Judge; GUTIERREZ, Judge;
                                     and LORELLO, Judge
                      ________________________________________________

PER CURIAM
           In 1998, Jorge Contreras pled guilty to second degree murder. I.C. §§ 18-4001, 18-4002,
and 18-4003. The district court sentenced Contreras to a unified term of life imprisonment, with
a minimum period of confinement of thirty years. Contreras filed an I.C.R. 35(a) motion for
correction of an illegal sentence, which the district court treated as an I.C.R. 35(b) motion and
denied it as untimely. Contreras appeals, asserting that the district court erred by denying his
Rule 35 motion for correction of an illegal sentence as untimely and also claims his sentence is
illegal.




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       In State v. Clements, 148 Idaho 82, 87, 218 P.3d 1143, 1148 (2009), the Idaho Supreme
Court held that the term “illegal sentence” under Rule 35 is narrowly interpreted as a sentence
that is illegal from the face of the record, i.e., does not involve significant questions of fact or
require an evidentiary hearing. Rule 35 is a “narrow rule,” and because an illegal sentence may
be corrected at any time, the authority conferred by Rule 35 should be limited to uphold the
finality of judgments. State v. Farwell, 144 Idaho 732, 735, 170 P.3d 397, 400 (2007). The state
concedes that the district court had jurisdiction to rule on Contreras’s motion, and therefore his
Rule 35 motion was not untimely.
       In his Rule 35 motion and on appeal, Contreras argues his sentence for second degree
murder is illegal because “the crime he was convicted of only carries 10 years fixed which can
be extended to life.” Idaho Code Section 18-4004 states, in relevant part, that “every person
guilty of murder of the second degree is punishable by imprisonment not less than ten (10) years
and the imprisonment may extend to life.” This Court’s opinion in State v. Griffith, 157 Idaho
409, 336 P.3d 816 (Ct. App. 2014) explained that I.C. § 19-2513 gives the district court the
discretion to determine what portion of the sentence in excess of the mandatory minimum term
will be fixed. Because I.C. § 18-8004 provides that imprisonment shall be not less than ten
years, the district court was authorized to determine what portion of Contreras’s sentence would
be fixed, with a maximum allowable fixed term of life imprisonment. Therefore, the district
court properly denied Contreras’s motions. State v. Garcia-Rodriguez, 162 Idaho 271, 275, 396
P.3d 700, 704 (2017) (where an order of the district court is correct but based on an erroneous
theory, this court will affirm on the correct theory).        The district court’s order denying
Contreras’s Rule 35 motion is affirmed.




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