                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                         Docket No. 42530

BERNARDO PENALOZA GARCIA,                         )   2016 Unpublished Opinion No. 390
                                                  )
       Petitioner-Appellant,                      )   Filed: February 11, 2016
                                                  )
v.                                                )   Stephen W. Kenyon, Clerk
                                                  )
STATE OF IDAHO,                                   )   THIS IS AN UNPUBLISHED
                                                  )   OPINION AND SHALL NOT
       Respondent.                                )   BE CITED AS AUTHORITY
                                                  )

       Appeal from the District Court of the Third Judicial District, State of Idaho,
       Canyon County. Hon. Molly J. Huskey, District Judge.

       Appeal from order denying motion for reconsideration of summary dismissal of
       petition for post-conviction relief, dismissed.

       Bernardo Penaloza Garcia, Boise, pro se appellant.

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

MELANSON, Chief Judge
       Bernardo Penaloza Garcia appeals from the district court’s order denying Garcia’s
motion for reconsideration of the district court’s summary dismissal of Garcia’s petition for
post-conviction relief. For the reasons set forth below, we dismiss Garcia’s appeal.
       Garcia pled guilty to conspiracy to traffic in methamphetamine. I.C. §§ 37-2732B(a)(4),
37-2732B(b). Garcia was sentenced to a unified term of seventeen years, with a minimum term
of confinement of seven years. Garcia appealed and this Court affirmed. A remittitur was issued
on November 16, 2012.          On November 20, 2013, Garcia filed a verified petition for
post-conviction relief. The state moved for summary dismissal on February 18, 2014. On
July 24, 2014, after conducting a hearing, the district court filed an order granting summary
dismissal of Garcia’s petition. In its order, the district court determined that Garcia’s petition for



                                                  1
post-conviction relief was not filed within one year from the issuance of the remittitur on
November 16, 2012. I.C. § 19-4902(a). Additionally, the district court noted that it was also
dismissing Garcia’s petition on alternate grounds. The district court entered final judgment on
July 24, 2014.
       On August 11, 2014, Garcia moved the district court to reconsider its July 24, 2014, order
granting summary dismissal solely on the grounds that the district court erroneously concluded
that the petition was not timely filed. Garcia provided mail logs to demonstrate that his petition
was timely placed in the prison mail system, thereby invoking the “mailbox rule” and resulting in
a timely filed petition.1 On August 13, 2014, the district court denied Garcia’s motion for
reconsideration determining that, even if it had erroneously dismissed Garcia’s petition on the
grounds that it was untimely filed, Garcia did not challenge the district court’s dismissal on the
other alternative grounds enunciated by the district court. Garcia appeals.
       Garcia argues that the district court erred in summarily dismissing his petition for
post-conviction relief and in denying his motion for reconsideration based on alternate grounds.
Conversely, the state argues that this Court is without jurisdiction to consider the merits of
Garcia’s argument because Garcia’s appeal was not timely filed from the summary dismissal
order. Specifically, the state asserts that Garcia did not timely file his motion for reconsideration
of the district court’s order granting summary dismissal of Garcia’s petition, which failed to toll
the forty-two-day period in which Garcia was required to file a notice of appeal from the district
court’s order dismissing Garcia’s post-conviction petition.
       Pursuant to I.A.R. 21, failure to file a notice of appeal with the clerk of the district court
within the time limits prescribed by the appellate rules deprives the appellate courts of
jurisdiction over the appeal. Idaho Appellate Rule 14(a) provides, in part:



1
        The mailbox rule deems a pro se inmate’s document filed as of the date it was submitted
to prison authorities for the purpose of mailing to the court for filing. Munson v. State, 128
Idaho 639, 641, 917 P.2d 796, 798 (1996). See also State v. Lee, 117 Idaho 203, 204, 782 P.2d
594, 595 (Ct. App. 1990) (holding that, under the mailbox rule, pro se inmates’ documents are
considered filed when they are delivered to prison authorities for the purpose of mailing to the
court clerk). The policy behind the mailbox rule is that, once a prisoner submits documents to
prison authorities for filing with the court, the prisoner no longer has control over his or her
documents. Munson, 128 Idaho at 643, 917 P.2d at 800.

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                Any appeal . . . may be made only by physically filing a notice of appeal
       with the clerk of the district court within 42 days from the date evidenced by the
       filing stamp of the clerk of the court on any judgment, order, or decree of the
       district court appealable as a matter of right in any civil or criminal action. The
       time for an appeal from any civil judgment or order in an action is terminated by
       the filing of a timely motion which, if granted, could affect any findings of fact,
       conclusions of law or any judgment in the action . . . in which case the appeal
       period for all judgments or orders commences to run upon the date of the clerk’s
       filing stamp on the order deciding such motion.

       In this case, the district court entered its final judgment on July 24, 2014. Garcia filed his
notice of appeal fifty-four days later on September 16, 2014, which would be untimely unless the
forty-two-day requirement was tolled. We note that Garcia did file a motion for reconsideration
which, if proper, would toll the forty-two-day period. In this case, such a motion must have been
brought within fourteen days of the district court’s July 24 2014, entry of final judgment.2 The
filing date on Garcia’s motion for reconsideration was August 11, 2014, which was eighteen
days after the final judgment. Garcia has failed to provide any evidence that he placed his
motion in the prison mail system before the fourteen-day deadline and thus, his motion was
untimely. See, e.g., Hayes v. State, 143 Idaho 88, 90-91, 137 P.3d 475, 477-78 (Ct. App. 2006).
Therefore, we hold that the district court lacked jurisdiction to hear Garcia’s motion for
reconsideration. Moreover, because Garcia’s motion for reconsideration was untimely, it did not
toll the forty-two-day notice of appeal filing requirement. Consequently, because Garcia’s notice
of appeal was untimely, this Court lacks jurisdiction to address the merits of Garcia’s case.
Accordingly, we dismiss Garcia’s appeal. No costs or attorney fees awarded on appeal.
       Judge GUTIERREZ and Judge GRATTON, CONCUR.




2
        Garcia moved for reconsideration under I.R.C.P. 11(a)(2)(B). We note that this rule
relates to motions for reconsideration of trial court interlocutory orders and therefore was
inapplicable here. Rather, Garcia’s motion would have been more accurately brought under
I.R.C.P. 59(e) as a motion to alter or amend a judgment. However, in either case, both motions
must be brought with fourteen days after entry of final judgment.

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