                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                   Docket Nos. 39682 & 39683

STATE OF IDAHO,                                   )
                                                  )      2013 Opinion No. 48
       Plaintiff-Appellant,                       )
                                                  )      Filed: September 6, 2013
v.                                                )
                                                  )      Stephen W. Kenyon, Clerk
MOSES OLIVAS, JR.,                                )
                                                  )
       Defendant-Respondent.                      )
                                                  )

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

       Appeal from judgment of conviction and sentence for failure to register as a
       sexual offender, dismissed; judgment of conviction and sentence for sexual abuse
       of a child under the age of sixteen, affirmed.

       Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy
       Attorney General, Boise, for appellant. Russell J . Spencer argued.

       Sara B. Thomas, State Appellate Public Defender; Shawn F. Wilkerson, Deputy
       Appellate Public Defender, Boise, for respondent. Shawn F. Wilkerson argued.
                  ________________________________________________
MELANSON, Judge
       The State of Idaho appeals from Moses Olivas, Jr.’s judgment of conviction and sentence
for failure to register as a sexual offender in Docket No. 39682 and his judgment of conviction
and sentence for sexual abuse of a child under the age of sixteen in Docket No. 39683.
Specifically, the state argues the district court had no authority to place Olivas on probation after
a period of retained jurisdiction in Docket No. 39683. For the reasons set forth below, we
dismiss the appeal from Docket No. 39682 and affirm the judgment of conviction and sentence
in Docket No. 39683.
                                                 I.
                                  FACTS AND PROCEDURE
       In Docket No. 39683, Olivas pled guilty to sexual abuse of a child under the age of
sixteen and was sentenced to a unified term of ten years, with a minimum period of confinement
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of five years. Following a period of retained jurisdiction, the district court placed Olivas on
probation for seven years and ordered him to register as a sexual offender. Thereafter, in Docket
No. 39682, the state charged Olivas with failure to register as a sexual offender and alleged
Olivas violated terms of his probation in Docket No. 39683. Pursuant to a plea agreement,
Olivas pled guilty to failure to register. In a consolidated sentencing and probation violation
disposition hearing, the district court revoked Olivas’s probation in Docket No. 39683 and
executed the underlying sentence.        In Docket No. 39682, the district court imposed an
indeterminate term of five years, to run consecutive to the sentence in Docket No. 39683. The
district court retained jurisdiction in both cases. The state filed an I.C.R. 35 motion to correct
illegal sentences, asserting I.C. § 18-8311(1) did not allow the district court to retain jurisdiction
in either of the cases. In ruling on the state’s motion, the district court determined it could not
retain jurisdiction in Docket No. 39682, but disagreed that I.C. § 18-8311(1) prevented it from
retaining jurisdiction in Docket No. 39683. Accordingly, the district court granted the state’s
motion as to Docket No. 39682, entered an amended judgment of conviction, and remanded
Olivas to the custody of the Idaho Department of Correction to serve his sentence. The district
court denied the state’s motion as to Docket No. 39683. After a period of retained jurisdiction in
Docket No. 39683, the district court reinstated Olivas on probation for seven years. The state
appeals.
                                                 II.
                                            ANALYSIS
       We initially note that, although the state filed a notice of appeal in Docket No. 39682,
after the district court granted the state’s Rule 35 motion with respect to that case and entered an
amended judgment of conviction, the state advanced no further argument. Therefore, the state’s
appeal in Docket No. 39682 is dismissed.
       The state argues that I.C. § 18-8311(1) is unambiguous and that, pursuant to the plain
language of the statute, the district court had no authority to place Olivas on probation after a
period of retained jurisdiction in Docket No. 39683. 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, 134 Idaho 387, 389, 3 P.3d 65, 67
                                                  2
(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 law provides a trial court with several options following revocation of an
offender’s probation. The court may impose the original sentence, commute the offender’s
sentence and confine the offender to the county jail, suspend execution of the judgment and
retain jurisdiction over the offender for up to 365 days, or suspend execution of the judgment and
place the offender back on probation. I.C. §§ 19-2601(1)-(4), 20-222; see also I.C.R. 33(d). A
trial court also possesses authority under I.C.R. 35 to sua sponte reduce the offender’s sentence,
and the decision whether to do so is committed to the discretion of the court. State v. McCarthy,
145 Idaho 397, 400, 179 P.3d 360, 363 (Ct. App. 2008); State v. Hoskins, 131 Idaho 670, 672,
962 P.2d 1054, 1056 (Ct. App. 1998).
       Idaho Code Section 18-8311(1) provides:
               An offender subject to registration who knowingly fails to register, verify
       his address, or provide any information or notice as required by this chapter shall
       be guilty of a felony and shall be punished by imprisonment in the state prison
       system for a period not to exceed ten (10) years and by a fine not to exceed five
       thousand dollars ($5,000). If the offender is on probation or other supervised
       release or suspension from incarceration at the time of the violation, the probation
       or supervised release or suspension shall be revoked and the penalty for violating
       this chapter shall be served consecutively to the offender’s original sentence.
The state asserts that this language directed the district court to revoke Olivas’s probation in
Docket No. 39683 and require that Olivas serve his sentence for sexual abuse of a child prior to
serving his sentence for failure to register. The state concludes that, by placing Olivas on
probation after a period of retained jurisdiction in Docket No. 39683, the district court suspended
Olivas’s sentence for sexual abuse of a child rather than requiring him to serve it in
contravention of I.C. § 18-8311(1). 1


1
       The state alternatively argues that, when the district court placed Olivas on probation in
Docket No. 39683 and remanded him to the Idaho Department of Correction to serve his
sentence in Docket No. 39682 for failure to register, the district court allowed Olivas to serve his
sentence for failure to register as a sexual offender concurrent with his sentence in Docket No.
39683 in violation of I.C. § 18-8311(1). However, once the district court placed Olivas on
probation, Olivas was no longer serving his sentence in Docket No. 39683 because offenders are
                                                 3
       Olivas argues that the inherent authority of Idaho courts to suspend a sentence can only
be circumvented where the legislature has enacted a statute specifically prescribing a mandatory
minimum term. Olivas cites to State v. Pena-Reyes, 131 Idaho 656, 962 P.2d 1040 (1998), to
support this proposition.      In that case, Pena-Reyes filed a motion challenging the
constitutionality of a statute which imposed a mandatory minimum sentence of five years for a
guilty plea to trafficking in cocaine and required the sentence not be suspended, deferred, or
withheld. Pena-Reyes asserted that the statute violated Article V, Section 13 of the Idaho
Constitution because it prohibited the sentencing judge from exercising the inherent judicial
power to suspend sentences. Previously, the Idaho Supreme Court held that the judiciary had the
inherent power to suspend sentences. See State v. McCoy, 94 Idaho 236, 240, 486 P.2d 247, 251
(1971). Following the decision in McCoy, the legislature proposed and the people adopted an
amendment to Article V, Section 13 of the Idaho Constitution, which added the following
language: “provided, however, that the legislature can provide mandatory minimum sentences
for any crimes, and any sentence imposed shall be not less than the mandatory minimum
sentence so provided. Any mandatory minimum sentence so imposed shall not be reduced.” 2 In
Pena-Reyes, the Court concluded that this amendment effectively circumscribed the power of
Idaho courts to suspend a mandatory minimum sentence contained in a statute enacted pursuant
to the authority of the Idaho Constitution. Pena-Reyes, 131 Idaho at 656, 962 P.2d at 1040.
Thus, the Court held the statute at issue did not violate Article V, Section 13 of the Idaho




not entitled to credit for time served as a condition of probation. See State v. Banks, 121 Idaho
608, 609-10, 826 P.2d 1320, 1321-22 (1992).
2
       Article V, Section 13 of the Idaho Constitution provides:

               The legislature shall have no power to deprive the judicial department of
       any power or jurisdiction which rightly pertains to it as a coordinate department
       of the government; but the legislature shall provide a proper system of appeals,
       and regulate by law, when necessary, the methods of proceeding in the exercise of
       their powers of all the courts below the Supreme Court, so far as the same may be
       done without conflict with this Constitution, provided, however, that the
       legislature can provide mandatory minimum sentences for any crimes, and any
       sentence imposed shall be not less than the mandatory minimum sentence so
       provided. Any mandatory minimum sentence so imposed shall not be reduced.

                                               4
Constitution. Id. Olivas argues that, unlike the statute at issue in Pena-Reyes, I.C. § 18-8311(1)
does not delineate a mandatory minimum sentence whereby the district court is precluded from
suspending the sentence.      Therefore, Olivas concludes that I.C. § 18-8311(1) did not
circumscribe the district court’s inherent authority to suspend his sentence in Docket No. 39683.
       As demonstrated by the statute at issue in Pena-Reyes, when the legislature has intended
to prohibit the district court from suspending a sentence, it has demonstrated its ability to make
that intent entirely clear by imposing a mandatory minimum sentence. Moreover, Article V,
Section 13 of the Idaho Constitution circumscribes the inherent power of Idaho courts to suspend
sentences only when the legislature prescribes a mandatory minimum sentence in a
constitutionally enacted statute; Idaho courts retain that inherent power in all other cases.
Because I.C. § 18-8311(1) does not contain any language imposing a mandatory minimum
sentence, the district court did not err by suspending Olivas’s original sentence in Docket No.
39683 and placing him on probation after a period of retained jurisdiction.
                                               III.
                                        CONCLUSION
       The state advanced no argument on appeal regarding Docket No. 39682 and this case is
dismissed. Idaho Code Section 18-8311(1) does not contain any language imposing a mandatory
minimum sentence. Therefore, the district court did not err by suspending Olivas’s sentence in
Docket No. 39683 and placing him on probation after a period of retained jurisdiction.
Accordingly, we dismiss the state’s appeal from Docket No. 39682 and affirm Olivas’s judgment
of conviction and sentence for sexual abuse of a child under the age of sixteen in Docket
No. 39683.
       Chief Judge GUTIERREZ, CONCURS.
       Judge LANSING, DISSENTING
       Because I believe that Idaho Code § 18-8311(1) clearly and constitutionally prohibits the
suspension of Olivas’s sentence for sexual abuse of a child in Docket No. 39683, I respectfully
dissent.
       Section 18-8311(1) states that if an offender is on probation and violates the sex offender
registration statutes, “the probation or supervised release or suspension shall be revoked and the
penalty for violating this chapter shall be served consecutively to the offender’s original


                                                5
sentence.” This language plainly directs that the suspension of the offender’s sentence for a prior
crime must be revoked and the sentence of incarceration must be served.
       The majority declines to enforce this provision of Section 18-8311(1) because they deem
it to contravene the inherent powers of the court to suspend sentences. In my view, the majority
interprets much too narrowly the language of Article V, Section 13 of the Idaho Constitution,
which states:
               The legislature shall have no power to deprive the judicial department of
       any power or jurisdiction which rightly pertains to it as a coordinate department
       of the government; but the legislature shall provide a proper system of appeals,
       and regulate by law, when necessary, the methods of proceeding in the exercise of
       their powers of all the courts below the Supreme Court, so far as the same may be
       done without conflict with this Constitution, provided, however, that the
       legislature can provide mandatory minimum sentences for any crimes, and any
       sentence imposed shall be not less than the mandatory minimum sentence so
       provided. Any mandatory minimum sentence so imposed shall not be reduced.

(emphasis added). The Idaho Supreme Court considered the scope of legislative authority under
that constitutional provision in State v. Pina-Reyes, 131 Idaho 656, 962 P.2d 1040 (1998), where
the defendant challenged the constitutionality of a statute that prescribed a mandatory minimum
sentence of five years for trafficking in cocaine and stated that the sentence “shall not be
suspended, or withheld.” Pina-Reyes asserted that the statute violated Article V, Section 13
because it prohibited the sentencing judge from exercising inherent judicial power to suspend
sentences. The Idaho Supreme Court held that the portion of Article V, Section 13 that is
italicized in the above quotation “effectively circumscribes the power of our Court to suspend a
mandatory minimum sentence contained in the statute enacted pursuant to the authority of our
constitution.” Id. at 657, 962 P.2d at 1041. The Court therefore concluded that the statute that
prescribed a mandatory minimum sentence for trafficking in cocaine and prohibited suspension
of the sentence did not violate the constitution by intruding upon the inherent power of Idaho
courts to suspend sentences.
       The majority apparently distinguishes Pina-Reyes and deems Article V, Section 13
insufficient to empower the Idaho Legislature to prohibit suspension of a sentence as it purported
to do in Idaho Code § 18-8311(1) because Section 18-8311(1) does not also prescribe a




                                                6
mandatory minimum term of incarceration for the offense. 1 That is, the majority holds that
Article V, Section 13 of the Idaho Constitution enables the legislature to prohibit the suspension
of a sentence only when the legislature also prescribes a mandatory minimum period of
incarceration for the same offense.
       I cannot agree with that restrictive view of the constitutional provision. The authority
conferred by Article V, Section 13 for the legislature to prescribe mandatory minimum periods
of incarceration, which must be served without suspension or reduction, inherently includes the
authority to impose lesser restraints on the courts’ sentencing authority, such as prohibitions
against the suspension of a sentence. Indeed, a statutory bar against suspension of a sentence
like that found in Idaho Code § 18-8311(1) is a type of mandatory minimum sentence in that it
requires that whatever sentence is imposed must be served in incarceration instead of on
probation. Article V, Section 13 does not limit legislative authority by allowing the legislature to
prescribe only mandatory minimum terms of incarceration--it authorizes the establishment of
mandatory minimum sentences, which includes a mandatory provision that any sentence that a
court lawfully imposes must be served in confinement and cannot be suspended.




1
        Of course, the legislature could not conceivably prescribe a mandatory minimum term of
confinement within Idaho Code § 18-8311(1) for a previous conviction. The pertinent provision
in Section 18-8311(1) applies only when a defendant is already on probation for a prior offense
for which a sentence of incarceration has already been pronounced and suspended (unless the
offender was on probation pursuant to a withheld judgment). Thus, the period of incarceration
for the underlying crime has already been determined before the provision of Section 18-8311(1)
is triggered.
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