               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 40702

STATE OF IDAHO,                                 )      2014 Unpublished Opinion No. 430
                                                )
       Plaintiff-Respondent,                    )      Filed: March 27, 2014
                                                )
v.                                              )      Stephen W. Kenyon, Clerk
                                                )
DENNIS E. ABBOTT,                               )      THIS IS AN UNPUBLISHED
                                                )      OPINION AND SHALL NOT
       Defendant-Appellant.                     )      BE CITED AS AUTHORITY
                                                )

       Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin
       Falls County. Hon. Randy J. Stoker, District Judge.

       Order denying motion to reconsider order denying motion for credit for time
       served, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Sally J. Cooley, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GUTIERREZ, Chief Judge
       Dennis E. Abbott appeals from the district court’s order denying Abbott’s motion to
reconsider the order denying his motion for credit for time served while he was on probation.
Generally, Abbott argues the district court erred by denying his motion to reconsider because
Abbott was never truly “at large” while on probation. For the reasons set forth below, we affirm.
                                               I.
                                 FACTS AND PROCEDURE
       In 1986, Abbott was convicted of lewd conduct with a minor under sixteen. The district
court sentenced Abbott to an indeterminate life sentence and retained jurisdiction for 120 days.
At the conclusion of the period of retained jurisdiction, the district court reduced the
indeterminate sentence to forty years, suspended the forty-year sentence, and placed Abbott on
probation. In 1988, upon finding Abbott violated the terms of his probation, the district court
revoked probation and executed the indeterminate forty-year sentence.

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       In 2006, Abbott filed an Idaho Criminal Rule 35 motion to correct an illegal sentence and
a motion for credit for time served, seeking credit for time he served on probation. The district
court denied both motions, and Abbott filed a timely notice of appeal. In an unpublished
opinion, this Court affirmed the district court’s denial of Abbott’s Rule 35 motion and motion for
credit for time served. See State v. Abbott, Docket No. 33216 (Ct. App. Mar. 8, 2007).
       In 2012, Abbott filed another motion for credit for time served. In the motion, Abbott
requested that the district court credit his sentence for the entire 729-day period he was on
probation. 1 The district court denied Abbott’s motion, citing to Idaho Code §§ 18-309 and
20-209A, and Taylor v. State, 145 Idaho 866, 869-70, 187 P.3d 1241, 1244-45 (Ct. App. 2008)
as authority stating a defendant is not entitled to credit for time served while on probation.
Abbott then moved the district court to reconsider its denial of Abbott’s motion for credit for
time served. The district court denied the motion without a hearing. Abbott timely appeals from
the order denying his motion to reconsider.
                                                II.
                                           ANALYSIS
       Abbott alleges the district court erred by denying him credit for time served on probation.
Whether the trial court properly applied the law governing credit for time served is a question of
law over which we exercise free review. State v. Vasquez, 142 Idaho 67, 68, 122 P.3d 1167,
1168 (Ct. App. 2005); State v. Brashier, 130 Idaho 112, 113, 937 P.2d 424, 425 (Ct. App. 1997).
We defer to the trial court’s findings of fact, unless those findings are unsupported by substantial
and competent evidence in the record and are therefore clearly erroneous. State v. DuValt, 131
Idaho 550, 552-53, 961 P.2d 641, 643-44 (1998); State v. Davis, 139 Idaho 731, 734, 85 P.3d
1130, 1133 (Ct. App. 2003).
       Abbott’s argument focuses on the term “at large” in Idaho Code § 18-309. This Court
exercises free review over the application and construction of statutes. State v. Reyes, 139 Idaho
502, 505, 80 P.3d 1103, 1106 (Ct. App. 2003). Where the language of a statute is plain and
unambiguous, this Court must give effect to the statute as written, without engaging in statutory
construction. State v. Burnight, 132 Idaho 654, 659, 978 P.2d 214, 219 (1999); State v. Escobar,


1
        Abbott previously requested 720 days credit for time served. State v. Abbott, Docket No.
33216 (Ct. App. Mar. 8, 2007). It is unclear where the requested additional nine-day credit
originates from.

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134 Idaho 387, 389, 3 P.3d 65, 67 (Ct. App. 2000). The language of the statute is to be given its
plain, obvious, and rational meaning. Burnight, 132 Idaho at 659, 978 P.2d at 219. If the
language is clear and unambiguous, there is no occasion for the court to resort to legislative
history, or rules of statutory interpretation. Escobar, 134 Idaho at 389, 3 P.3d at 67.
        Idaho Code § 18-309 governs when credit for time served must be given:
                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.) Abbot asserts that “at large,” as referenced in section 18-309, should be
construed as living without restriction. He argues that he was restricted by the Department of
Correction and was not free to do what he wanted with his time and money in the same way a
law-abiding citizen would be able to, such as being required to submit to and pay for supervision
as a condition of probation. Abbott claims that living with these restrictions did not allow him
the opportunity to live “at large.” Since he was not “at large,” Abbot contends he should be
credited for the 729 days he spent on probation even though he was not incarcerated during that
time.
        Abbott’s argument is inconsistent with the established law concerning credit for time
served. Section 18-309 awards credit for periods of incarceration, if the incarceration was for the
offense or an included offense for which judgment was entered, not for restrictions on personal
liberties. An analogous argument was raised in State v. Climer, 127 Idaho 20, 22, 896 P.2d 346,
348 (Ct. App. 1995).     In Climer, this Court was asked to define the statutory construction of
section 18-309 and to determine whether, under the statute, house arrest should be credited as
time served due to the deprivation of liberty. This Court declined Climer’s argument that
incarceration includes all restraints of personal liberty and concluded that incarceration means to
confine in a prison or jail. Climer, 127 Idaho at 23, 896 P.2d at 349.
        In this case, Abbott’s personal liberties were restrained due to the conditions of
probation. The restraint on Abbott’s personal liberties did not affect his status of being “at large”
while on probation because he was not confined to a prison or jail. Accordingly, incarceration is


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not synonymous with probation. 2 Since credit is awarded only for periods of incarceration, and
Abbott was not incarcerated, he is not entitled to credit for time served while on probation.
Taylor, 145 Idaho at 869-70, 187 P.3d at 1244-45; Climer, 127 Idaho at 24, 896 P.2d at 350;
State v. Sutton, 113 Idaho 832, 834, 748 P.2d 416, 418 (Ct. App. 1987). We conclude the district
court did not err by denying Abbott’s motion to reconsider the district court’s order denying
Abbott’s motion for credit for time served while he was on probation. Accordingly, we affirm
the order of the district court denying Abbott’s motion for reconsideration.
       Judge GRATTON and Judge MELANSON CONCUR.




2
        Incarceration is “[t]he act or process of confining someone; imprisonment.” BLACK’S
LAW DICTIONARY 775 (8th ed. 2004). Probation is “a court-imposed criminal sentence that,
subject to stated conditions, releases a convicted person into the community instead of sending
the criminal to jail or prison.” Id. at 1240.

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