               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 39969

STATE OF IDAHO,                                 )     2013 Unpublished Opinion No. 448
                                                )
       Plaintiff-Respondent,                    )     Filed: April 17, 2013
                                                )
v.                                              )     Stephen W. Kenyon, Clerk
                                                )
RYAN DONALD SMALL,                              )     THIS IS AN UNPUBLISHED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. Kathryn A. Sticklen, District Judge. Hon. Daniel L. Steckel,
       Magistrate.

       Order affirming conviction for driving without privileges, affirmed.

       Nevin, Benjamin, McKay & Bartlett, LLP; Dennis A. Benjamin, Boise, for
       appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GRATTON, Judge
       Ryan Donald Small appeals from the district court’s order, on intermediate appeal,
affirming his conviction for driving without privileges, Idaho Code § 18-8001. We affirm.
                                               I.
                                 FACTS AND PROCEDURE
       Small was initially charged with a single count of driving without privileges. Later the
prosecutor filed first and second amended complaints, each amendment enhancing his initial
driving without privileges charge as a result of prior convictions. Small moved to suppress all
evidence resulting from his traffic stop, claiming the traffic stop was unconstitutional. At the
suppression hearing the arresting police officer, under subpoena, failed to appear.          The
prosecutor was unable to account for the police officer’s whereabouts and requested a
continuance. Small moved to dismiss the case as a sanction for the officer’s absence. The



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magistrate orally granted Small’s motion to dismiss and a notation also appears on the second
amended complaint stating “5/7/10 Dismissed DLS.”
       Within hours of the hearing, and before a written order was filed, the magistrate
determined that the dismissal was not appropriate because the prosecutor was not given
reasonable notice, pursuant to Idaho Criminal Rule 48. 1 The magistrate sent the prosecutor and
defense counsel the following email:
               Upon leaving the bench today I realized that dismissal of this case was
       technically improper without proper notice under [I.C.R.] 48. With that in mind,
       the City is free to file a motion to reconsider the dismissal. If the City would like
       me to reconsider the denial of the continuance, it will have to show good cause for
       the officer’s absence.

The prosecutor filed a motion to reconsider the dismissal, explaining that the police officer failed
to appear because he was teaching a class at the police academy and had mistakenly thought he
had been released from his subpoena. The magistrate granted the motion.
       Subsequently, Small’s motion to suppress was vacated and the case was set for a pretrial
conference. Small failed to appear at the pretrial conference and the magistrate issued a bench
warrant for his arrest.   Small filed a motion to quash the bench warrant arguing that the
magistrate lost jurisdiction after dismissing the case. Therefore, Small argued that the magistrate




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       I.C.R. 48 provides:

               (a) Dismissal on motion and notice. The court, on notice to all parties,
               may dismiss a criminal action upon its own motion or upon motion of any
               party upon either of the following grounds:
                        (1) For unnecessary delay in presenting the charge to the grand
                        jury or if an information is not filed within the time period
                        prescribed by Rule 7(f) of these rules, or for unnecessary delay in
                        bringing the defendant to trial, or
                        (2) For any other reason, the court concludes that such dismissal
                        will serve the ends of justice and the effective administration of the
                        court’s business.
               (b) Order of dismissal. When a court dismisses a criminal action upon its
               own motion or upon the motion of any party under this rule, it shall state
               in the order of dismissal its reasons for such dismissal.
               (c) Effect of dismissal. An order for dismissal of a criminal action is a
               bar to any other prosecution for the same offense if it is a misdemeanor,
               but it is not a bar if the offense is a felony.

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had no jurisdiction to entertain the prosecution’s motion to reconsider. The magistrate denied
the motion.
       Thereafter, Small entered a conditional guilty plea to an amended charge of driving
without privileges (without the enhancement of his prior convictions). The magistrate sentenced
him to twenty-eight days in jail and issued a fine. The magistrate stayed the sentence pending
appeal. Small appealed to the district court, arguing that the magistrate did not have jurisdiction
to reconsider its order of dismissal. The district court, in its appellate capacity, affirmed the
magistrate’s judgment. Small timely appeals.
                                                 II.
                                           ANALYSIS
       Small claims that the magistrate did not have jurisdiction to reconsider its order of
dismissal. 2 On review of a decision of the district court, rendered in its appellate capacity, we
review the decision of the district court directly. Losser v. Bradstreet, 145 Idaho 670, 672, 183
P.3d 758, 760 (2008); State v. DeWitt, 145 Idaho 709, 711, 184 P.3d 215, 217 (Ct. App. 2008).
We examine the magistrate record to determine whether there is substantial and competent
evidence to support the magistrate’s findings of fact and whether the magistrate’s conclusions of
law follow from those findings. Losser, 145 Idaho at 672, 183 P.3d at 760; DeWitt, 145 Idaho at
711, 184 P.3d at 217. If those findings are so supported and the conclusions follow therefrom
and if the district court affirmed the magistrate’s decision, we affirm the district court’s decision
as a matter of procedure. Losser, 145 Idaho at 672, 183 P.3d at 760; DeWitt, 145 Idaho at 711,
184 P.3d at 217. The issue of whether the magistrate had jurisdiction to reconsider its order of
dismissal is a question of law over which we exercise free review. Troupis v. Summer, 148
Idaho 77, 79, 218 P.3d 1138, 1140 (2009); State v. Peterson, 148 Idaho 610, 613, 226 P.3d 552,
555 (Ct. App. 2010). A court’s jurisdiction does not continue forever. State v. Jakoski, 139
Idaho 352, 354, 79 P.3d 711, 713 (2003). “Absent a statute or rule extending its jurisdiction, the
trial court’s jurisdiction to amend or set aside a judgment expires once the judgment becomes




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       Small’s guilty plea is ambiguous as to whether the plea was conditional. Therefore,
Small first argues that his guilty plea was conditional and that he did not waive his right to
appeal. The State does not dispute that the guilty plea was conditional. Therefore, we do not
address this issue.

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final, either by expiration of the time for appeal or affirmance of the judgment on appeal.” Id. at
355, 79 P.3d at 714 (footnote omitted).
       In the instant case, the magistrate orally granted Small’s motion to dismiss after the
arresting police officer failed to appear at the suppression hearing:
       COURT:                          Well, I’m not thrilled about this, but I--I am going
                                       to dismiss this.
       ....
       COURT:                          So, with that, this is dismissed.
       ....
       DEFENSE COUNSEL:                And, Your Honor, that’s with prejudice?
       COURT:                          Yeah. It’s dismissed.

The magistrate also wrote on the second amended complaint, “5/7/10 Dismissed DLS.” Small
contends that the annotation on the complaint effectively dismissed his case. He asserts that the
dismissal was a final order and the magistrate lost jurisdiction immediately upon dismissal.
Accordingly, Small contends that the State was unable to move the magistrate for
reconsideration, and the magistrate lacked jurisdiction to entertain the motion. Small further
claims that the State’s only available action would have been to file a notice of appeal.
       The State contends that the magistrate never entered a final, appealable order of
dismissal. First, the State argues that the annotation on the complaint is crossed out. Second, the
State argues that the annotation was not on a separate document as required by I.C.R. 47. Third,
the State argues that the alleged order was never filed with the clerk; therefore, the time for filing
an appeal pursuant to Idaho Appellate Rule 14 did not start. The district court, in its appellate
capacity, found that the magistrate’s dismissal was not final or valid because: (1) the magistrate
never filed a judgment of dismissal pursuant to I.C.R. 33(b); and (2) “the magistrate never filed
an order of dismissal stating the reason why he was dismissing the action,” pursuant to
I.C.R. 48(b). “Subject matter jurisdiction is the power to determine cases over a general type or
class of dispute.” State v. Jensen, 149 Idaho 758, 761, 241 P.3d 1, 4 (Ct. App. 2010) (quoting
Bach v. Miller, 144 Idaho 142, 145, 158 P.3d 305, 308 (2007)). The Idaho Supreme Court has
stated that once subject matter jurisdiction is acquired, it continues until some event ends the
power. State v. Rogers, 140 Idaho 223, 228, 91 P.3d 1127, 1132 (2004); Jensen, 149 Idaho at
761, 241 P.3d at 4. In the instant case, Small claims that the event ending the magistrate’s
jurisdiction was the entry of dismissal of his case. For reasons discussed below, we disagree.
However, even assuming arguendo that jurisdiction is lost upon the entry of a dismissal, Small’s

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argument still fails because the magistrate never entered a valid and final dismissal.         The
procedure to dismiss a criminal case is governed, in part, by the Idaho Criminal Rules. When a
defendant is entitled to be discharged, the magistrate is required to enter judgment. I.C.R. 33(b).
“The judgment shall be signed by the judge and entered by the clerk.” Id. Documents entered
by the clerk contain the clerk’s filing stamp indicating the date of filing.         I.C.R. 49(b).
Additionally, the time to file an appeal runs from the “date evidenced by the filing stamp of the
clerk.” I.A.R. 14(a).
       Here, the magistrate, for a brief period of time, determined that Small was entitled to be
discharged. However, the magistrate never provided a judgment that was entered by the clerk.
Small claims that the judgment effectively discharging him is the second amended complaint that
contains the annotation. Although the complaint has a filing stamp from when it was initially
filed, the complaint does not contain a second clerk’s filing stamp indicating that it was filed
after the annotation was made by the magistrate. Small argues that the magistrate’s initials and
the date on the annotation is the equivalent of a clerk’s filing stamp. We disagree. In regards to
filing a document, I.C.R. 49(c) provides that “[d]ocuments shall be filed in the manner provided
in civil actions.” Idaho Rule of Civil Procedure 5(e)(1) provides that “[t]he judge or clerk shall
indorse upon every pleading and other paper the hour and minute of its filing.” In the instant
case, the date and initials of the magistrate on the second amended complaint is not sufficient to
equate to a clerk’s filing stamp. Therefore, the annotation on the second amended complaint is
not a valid and final entry of dismissal because it was never filed by the clerk. Thus, even
assuming jurisdiction were lost upon the entry of dismissal, the magistrate here never lost
jurisdiction because there was no final and valid entry of dismissal.
       Nevertheless, we disagree with Small’s contention that jurisdiction is lost upon entry of
dismissal. As discussed above, subject matter jurisdiction continues until some event ends the
power. Rogers, 140 Idaho at 228, 91 P.3d at 1132; Jensen, 149 Idaho at 761, 241 P.3d at 4. For
instance, in Jakoski, the Idaho Supreme Court held that a trial court loses subject matter
jurisdiction to rule on a motion for withdrawal of a guilty plea when the judgment of conviction
becomes final. Jakoski, 139 Idaho at 355, 79 P.3d at 714; Jensen 149 Idaho at 762, 241 P.3d
at 5. In that case, the Idaho Supreme Court determined that a judgment becomes final at the
expiration of the time for appeal or the affirmance of the judgment on appeal. Jakoski, 139
Idaho at 355, 79 P.3d at 714. Although Jakoski specifically refers to the finality of a judgment of


                                                 5
conviction, case law supports applying the reasoning of Jakoski to the finality of dismissals. In
State v. Peterson, 153 Idaho 157, 280 P.3d 184 (Ct. App. 2012), this Court addressed a claim that
the district court lacked subject matter jurisdiction to entertain a motion filed more than ten
months after the entry of dismissal. Applying the reasoning of Jakoski, we held that “[t]he
district court’s order dismissing Peterson’s felony conviction became final after the expiration of
the time for appeal or affirmance of the dismissal on appeal and, therefore, the district court’s
jurisdiction to amend the order expired at that time.” Peterson, 153 Idaho at 167, 280 P.3d at
194. See also State v. Swartz, 109 Idaho 1033, 712 P.2d 734 (Ct. App. 1985) (holding that a
timely appeal from the dismissal of the case prevented the order of dismissal from becoming
final). Thus, contrary to Small’s contention, an order of dismissal is not final when entered, but
when the time for appeal expires.
       In the instant case, the magistrate’s oral dismissal and the annotation on the complaint
were issued on May 7, 2010. The magistrate recognized an error in the dismissal and notified
the parties within hours. The prosecutor then filed a motion to reconsider on May 13, 2010. The
magistrate granted the motion on May 19, 2010. All of these occurrences were within the forty-
two-day time limit to file a notice of appeal. Therefore, the dismissal never became final and no
event occurred causing loss of the magistrate’s subject matter jurisdiction. Accordingly, the
magistrate retained jurisdiction and had the right to take immediate steps to remedy any errors.
                                               III.
                                         CONCLUSION
       The magistrate had jurisdiction to reconsider its order of dismissal. Small has failed to
demonstrate reversible error. Accordingly, the district court’s order, on intermediate appeal,
affirming the magistrate’s decision is affirmed.
       Chief Judge GUTIERREZ and Judge MELANSON CONCUR.




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