               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 43441

STATE OF IDAHO,                                  ) 2016 Opinion No. 20
                                                 )
       Plaintiff-Respondent,                     ) Filed: March 9, 2016
                                                 )
v.                                               ) Stephen W. Kenyon, Clerk
                                                 )
STERLING GENE BRAND,                             )
                                                 )
       Defendant-Appellant.                      )
                                                 )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Richard D. Greenwood, District Judge.

       Order denying motion for credit for time served, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Jenny C. Swinford, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

GUTIERREZ, Judge
       Sterling Gene Brand appeals from the district court’s order denying his Rule 35 motion
for credit for time served. Brand specifically argues that because he was incarcerated when he
was served his arrest warrant for the instant offense, he is entitled to credit for time between the
date he was served the arrest warrant and the date the judgment of conviction was entered. For
the reasons explained below, we affirm the district court’s order.
                                                 I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Brand was incarcerated in the Ada County and Valley County jails beginning May 2014
on separate charges. On October 23, 2014, he was sentenced to the Idaho Department of
Correction for a drug possession charge in the Valley County case. On November 4, 2014,
Brand was transported to the Ada County jail to be sentenced on a drug possession charge in the


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Ada County case. That same day, Brand was served an arrest warrant for the instant offense--
one count of grand theft. A prison sentence was imposed for the Ada County drug possession
charge on November 7, 2014. Brand remained in the Ada County jail until sentencing for grand
theft.
         Brand pled guilty to grand theft on March 24, 2015. And on May 12, 2015, the district
court sentenced Brand to fourteen years, with two years determinate, and the remaining twelve
indeterminate years to run consecutively, with sentences in the two prior cases from Ada County
and Valley County. The district court only granted Brand four days’ credit for time served.
Brand filed an Idaho Criminal Rule 35 motion for credit for 190 days served, from the time he
was served the arrest warrant on November 4, 2014, to when the judgment of conviction was
entered on May 12, 2015. During a hearing on the motion, the district court stated that “if you
are in custody on separate charges and then unrelated charges are filed and you’re in custody,
you don’t get credit for that time because you’re not being held on the new charges, you’re being
held on the original charges.” The district court denied the motion, and Brand appeals.
                                                  II.
                                             ANALYSIS
         Brand argues the district court erred in denying his Rule 35 motion for credit for time
served. He reasons that the plain language of Idaho Code § 18-309 mandates credit for his
prejudgment incarceration because he was incarcerated for grand theft beginning November 4,
2014, until the entry of the judgment of conviction on May 12, 2015.
         Whether the district court properly applied this statutory provision to the facts in this case
is a question of law which we freely review. State v. Dorr, 120 Idaho 441, 443, 816 P.2d 998,
1000 (Ct. App. 1991). Idaho Code § 18-309 governs the award of credit for time served. It
provides in part:
         In computing the term of imprisonment, the person against whom the judgment
         was entered, shall receive credit for any period of incarceration prior to entry of
         judgment, if such incarceration was for the offense . . . for which the judgment as
         entered.
(Emphasis added.)
         The directive of I.C. § 18-309 is mandatory, specifying that a person shall receive credit
for prejudgment incarceration. State v. Horn, 124 Idaho 849, 850, 865 P.2d 176, 177 (Ct. App.
1993). This means that the defendant is entitled to credit for all time spent incarcerated before


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judgment. State v. Moore, 156 Idaho 17, 21, 319 P.3d 501, 505 (Ct. App. 2014). The converse
is also true--that the defendant is not entitled to credit under I.C. § 18-309 for any time not
actually spent incarcerated before judgment. Moore, 156 Idaho at 21, 319 P.3d at 505; see also
State v. Hernandez, 120 Idaho 785, 792, 820 P.2d 380, 387 (Ct. App. 1991) (stating that I.C.
§ 18-309 does not allow the defendant to receive credit for more time than he or she has actually
been in confinement). Accordingly, a district court may only give credit for the correct amount
of time actually served by the defendant prior to imposition of judgment in the case; the district
court does not have discretion to award credit for time served that is either more or less than that.
Moore, 156 Idaho at 21, 319 P.3d at 505. Thus, the defendant is entitled to credit for time
actually served prior to entry of judgment in the case. Id.
         However, I.C. § 18-309 confers a right to credit only if the presentence incarceration was
a consequence of or attributable to the offense for which the sentence is imposed. State v.
Vasquez, 142 Idaho 67, 68, 122 P.3d 1167, 1168 (Ct. App. 2005); State v. Rodriguez, 119 Idaho
895, 897, 811 P.2d 505, 507 (Ct. App. 1991); State v. Hale, 116 Idaho 763, 765, 779 P.2d 438,
440 (Ct. App. 1989). Credit is to be given only if the presentence incarceration was caused by
the offense for which a sentence is being imposed. Horn, 124 Idaho at 850, 865 P.2d at 177.
Moreover, when a defendant is charged with a second crime while already incarcerated for a first
offense, credit is not authorized if “the pending proceeding has no effect whatever upon a
defendant’s liberty.” Dorr, 120 Idaho at 443, 816 P.2d at 1000 (quoting State v. Moliga, 113
Idaho 672, 675, 747 P.2d 81, 84 (Ct. App. 1987). The purpose of I.C. § 18-309 and similar
statutes “is to eliminate unequal treatment of indigent prisoners who, because they were unable
to post bail, are confined longer than their wealthier counterparts.” Dorr, 120 Idaho at 443, 816
P.2d at 1000.
         Brand argues that based on the above precedent from this Court, we have gone beyond
the plain language of I.C. § 18-309 to improperly restrict the mandatory award of credit.
Quoting State v. Owens, 158 Idaho 1, 4, 343 P.3d 30, 33 (2015), Brand maintains that the only
condition in the statute is that “the defendant’s prejudgment jail time was for ‘the offense’ the
defendant was convicted of and sentenced for.” Brand reasons that because he was incarcerated
“for the offense” of grand theft following the service of an arrest warrant on November 4, 2014,
the district court was required to give him credit for his prejudgment incarceration for grand
theft.

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       Brand’s reliance on Owens is misplaced.         In Owens, the district court granted the
defendant credit for his prejudgment time served on only one of his eight counts of issuing a
check without funds. Id. at 3, 343 P.3d at 32. In reading the plain language of I.C. § 18-309, the
Idaho Supreme Court noted that although the word “offense” is singular, the phrase “if such
incarceration was for the offense or an included offense for which the judgment was entered”
describes the type of incarceration for which the defendant is entitled to credit. Owens, 158
Idaho at 4, 343 P.3d at 33. Thus, the Court held that if the defendant’s prejudgment jail time was
for “the offense” the defendant was convicted of and sentenced for, the defendant is entitled to
that credit. The defendant in Owens was incarcerated before trial for multiple counts of issuing a
check without funds. After conviction, he was sentenced on each of the eight separate offenses.
But he only received credit for time served for one of the eight offenses. The Court therefore
vacated the district court’s order and concluded the defendant was entitled to credit for the
prejudgment time he served on all of the eight offenses. The same limit articulated by this
Court--that incarceration must be a consequence of or attributable to the offense or conduct for
which the sentence is imposed--applied in Owens because the incarceration was a consequence
of the eight offenses he was convicted of and sentenced for.
       Here, the record indicates that Brand was not incarcerated for grand theft from
November 4, 2014, to May 12, 2015. Rather, he was incarcerated for drug possession charges in
the previously filed Ada County and Valley County cases. Had he not been awaiting sentencing
for grand theft, Brand would have been serving his drug possession sentences in prison. He
happened to be served the arrest warrant for his grand theft offense while he was already
incarcerated for drug possession. As a result, the incarceration could not be attributable to the
grand theft charge, and the grand theft charge had no effect upon Brand’s liberty. The district
court therefore did not err in denying Brand’s motion for credit for time served because his
incarceration was not for the grand theft offense for which judgment was entered.
                                                III.
                                         CONCLUSION
       The district court did not err in denying Brand’s motion for credit for time served because
he was incarcerated for other crimes when he was served an arrest warrant for the instant
offense. Therefore, we affirm the district court’s order.
       Judge GRATTON and Judge HUSKEY CONCUR.

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