                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 42160

DIEGO PEREGRINA,                               ) 2015 Published Opinion No. 46
                                               )
       Petitioner-Appellant,                   ) Filed: July 21, 2015
                                               )
v.                                             ) Stephen W. Kenyon, Clerk
                                               )
STATE OF IDAHO,                                )
                                               )
       Respondent.                             )
                                               )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Lynn G. Norton, District Judge.

       Judgment        summarily     dismissing       petition     for     post-conviction
       relief, vacated and remanded.

       Sara B. Thomas, State Appellate Public Defender; Jason C. Pintler, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
       Attorney General, Boise, for respondent.
                  ________________________________________________

MELANSON, Chief Judge
       Diego Peregrina appeals from the district court’s judgment summarily dismissing his
petition for post-conviction relief on the ground that it was untimely filed. For the reasons set
forth below, we vacate the judgment and remand for further proceedings.
                                               I.
                                 FACTS AND PROCEDURE
       In 2007, Peregrina shot two men following an argument at a child’s birthday party. Both
men survived. Peregrina was found guilty by a jury trial of two counts of aggravated battery,
I.C. §§ 18-903(a) and 18-907(1)(b), and two enhancements for the use of a firearm during the
commission of those batteries, I.C. § 19-2520.      Peregrina appealed from the judgment of
conviction, contending that, pursuant to I.C. § 19-2520E, he could only be subject to one
sentence enhancement because the crimes arose out of the same indivisible course of conduct
and that the district court erred by imposing multiple enhancements. This Court affirmed.
Peregrina then petitioned for review, which the Idaho Supreme Court granted.          The Court
remanded the case to the district court for a finding of whether Peregrina’s course of conduct was
divisible or indivisible and, if it were found indivisible, to resentence Peregrina consistent with
that finding. State v. Peregrina, 151 Idaho 538, 541, 261 P.3d 815, 818 (2011).
        On remand, the district court found that the aggravated batteries arose out of the same
indivisible course of conduct and, on December 15, 2011, resentenced Peregrina. Peregrina
appealed from that amended judgment of conviction, contending that his sentences were
excessive.   This Court affirmed in an unpublished opinion.            State v. Peregrina, Docket
No. 39565 (Ct. App. Oct. 19, 2012). The remittitur on that appeal was issued on November 16,
2012.
        On November 15, 2013, Peregrina filed a petition for post-conviction relief, asserting
claims of ineffective assistance of counsel at trial and deprivation of the right to a public trial.
The State moved to dismiss the petition, contending that it was filed outside the statute of
limitation prescribed by I.C. § 19-4902(a). The district court granted the state’s motion and
dismissed the petition. Peregrina appeals.
                                                 II.
                                   STANDARD OF REVIEW
        Our review of the district court’s construction and application of the limitation statute is a
matter of free review. Schwartz v. State, 145 Idaho 186, 189, 177 P.3d 400, 403 (Ct. App. 2008);
Freeman v. State, 122 Idaho 627, 628, 836 P.2d 1088, 1089 (Ct. App. 1992). The statute of
limitation for post-conviction actions provides that an application for post-conviction relief may
be filed at any time within one year from the expiration of the time for appeal or from the
determination of appeal or from the determination of a proceeding following an appeal,
whichever is later. I.C. § 19-4902(a). The appeal referenced in that section means the appeal in
the underlying criminal case. Schwartz, 145 Idaho at 189, 177 P.3d at 403; Freeman, 122 Idaho
at 628, 836 P.2d at 1089. An appeal from a judgment of conviction in a criminal case may be
filed within forty-two days of the entry of judgment. Idaho Appellate Rule 14(a). Thus, if no
appeal is filed from a judgment of conviction, the one-year limitation period for a post-
conviction action commences on the forty-third day after judgment. Schultz v. State, 151 Idaho
383, 385, 256 P.3d 791, 793 (Ct. App. 2011); Gonzalez v. State, 139 Idaho 384, 386, 79 P.3d
743, 745 (Ct. App. 2003). An untimely petition for post-conviction relief--one filed outside of
the one-year limitation period--must be dismissed absent a showing that the limitation period
should be equitably tolled. Evensiosky v. State, 136 Idaho 189, 190-91, 30 P.3d 967, 968-69
(2001); Schultz, 151 Idaho at 385, 256 P.3d at 793; Sayas v. State, 139 Idaho 957, 959, 88 P.3d
776, 778 (Ct. App. 2003).
                                                III.
                                           ANALYSIS
       Peregrina contends that the district court erred in determining that his petition was
untimely filed. The district court concluded that the I.C. § 19-4902(a) one-year limitation period
began to run on December 15, 2011--the date that the district court entered the amended
judgment of conviction following remand from the Idaho Supreme Court. As a result, the
district court held that Peregrina’s November 15, 2013, petition for post-conviction relief was
untimely filed by almost one year. The district court specifically held that Peregrina’s last appeal
from the amended judgment “did not renew or extend the time to file a post-conviction petition
alleging errors at trial.” Peregrina argues that this determination was incorrect and that the one-
year limitation period began to run on November 16, 2012--the date that the remittitur issued
after his appeal from the amended judgment of conviction. Thus, he claims that his petition was
timely filed with one day to spare.
       We begin our analysis by interpreting the provisions of I.C. § 19-4902(a), which is a
matter of free review. Schwartz, 145 Idaho at 189, 177 P.3d at 403; Martinez v. State, 130 Idaho
530, 532, 944 P.2d 127, 129 (Ct. App. 1997). The statute provides that a post-conviction petition
“may be filed at any time within one (1) year from the expiration of the time for appeal or from
the determination of an appeal or from the determination of proceedings following an appeal,
whichever is later.” I.C. § 19-4902(a). The statute refers only to the generic term “appeal,” but
it is well established that this means the direct appeal from the judgment of conviction in the
underlying criminal case. Schwartz, 145 Idaho at 189, 177 P.3d at 403; Gonzalez, 139 Idaho at
385, 79 P.3d at 744; Freeman, 122 Idaho at 628, 836 P.2d at 1089. Thus, the timeliness of a
post-conviction action under this circumstance is determined by the date when the judgment of
conviction becomes final under the circumstances of the case at hand. Atkinson v. State, 131
Idaho 222, 224, 953 P.2d 662, 664 (Ct. App. 1998).
       Under I.C. § 19-4902(a), if no direct appeal is filed from the judgment of conviction and
sentence, the judgment becomes final forty-two days after the file-stamp date on the judgment,
and the one-year statute of limitation begins to run on the forty-third day. Schultz, 151 Idaho at
385, 256 P.3d at 793; Gonzalez, 139 Idaho at 386, 79 P.3d at 745. If a timely 1 direct appeal is
filed, the judgment becomes final and the one-year limitation period begins to run when the
appeal is final, which occurs when the appellate court issues a remittitur. Cochran v. State, 133
Idaho 205, 206, 984 P.2d 128, 129 (Ct. App. 1999). But the judgment does not become final if
there are further proceedings directly flowing from that appeal, in which case the limitation
period does not begin to run until those proceedings conclude. 2
       An exception to the finality of judgment measure applies to post-judgment proceedings in
a criminal case that result in appealable orders that are not pursued as part of a direct appeal from
the judgment or could not be so raised because of timing issues. See I.A.R. 17(e)(1). If those
proceedings in the criminal case challenge the validity of the conviction or sentence, the statute
of limitation for post-conviction claims related thereto does not run from the finality of the
judgment but, instead, the limitation period runs from the final resolution of the post-judgment
proceedings in the criminal case. See Gonzalez, 139 Idaho at 386, 79 P.3d at 745.
        Where there has been a post-judgment motion or proceeding in a criminal action, the
order entered on the post-judgment matter ordinarily does not extend the statute of limitation for
a post-conviction action pertaining to the judgment of conviction or original sentence. 3
Gonzalez, 139 Idaho at 386, 79 P.3d at 745. In other words, the time limit to file a petition for
post-conviction relief regarding prejudgment matters is not renewed or extended by any other


1
        A direct appeal must be timely filed in order to delay the running of the statute of
limitation. Amboh v. State, 149 Idaho 650, 653, 239 P.3d 448, 451 (Ct. App. 2010); Loman v.
State, 138 Idaho 1, 2, 56 P.3d 158, 159 (Ct. App. 2002).

2
       For example, in Atkinson, 131 Idaho at 224-25, 953 P.2d at 664-65, this Court held that a
“proceeding following an appeal” under I.C. § 19-4902 included a petition to the United States
Supreme Court for a writ of certiorari from an Idaho appellate decision because the judgment
was not final as long as the Supreme Court could potentially affirm, reverse, or remand the
conviction for further proceedings.
3
        An exception to this rule exists when a cognizable post-judgment motion is filed within
fourteen days from entry of the judgment of conviction. Gonzalez, 139 Idaho at 386 n.1, 79 P.3d
at 745 n.1. Idaho Appellate Rule 14 provides that, in such an event, the period for appeal from
the judgment commences upon the entry of an order deciding the post-judgment motion.
Because the time for appeal from the judgment is extended, the commencement of the limitation
period for a post-conviction action is likewise extended. Gonzalez, 139 Idaho at 386 n.1, 79 P.3d
at 745 n.1.
collateral post-judgment proceeding. Martinez, 130 Idaho at 534, 944 P.2d at 131; Freeman, 122
Idaho at 629, 836 P.2d at 1090.
         This was the case in Hauschulz v. State, 144 Idaho 834, 172 P.3d 1109 (2007), which
the district court relied upon in holding that Peregrina’s petition was untimely. In Hauschulz, the
defendant pled guilty to a criminal offense and filed a direct appeal from the judgment of
conviction. This Court affirmed on July 11, 2000, 4 and the defendant pursued his direct appeal
no further. In the interim, the defendant filed a post-judgment motion in the trial court to
withdraw his plea and then appealed from the denial of the motion. This Court affirmed and a
remittitur was filed on July 19, 2002. On July 16, 2003, the defendant filed a petition for post-
conviction relief, asserting claims arising from prejudgment proceedings and a claim of
ineffective assistance of counsel in the handling of his post-judgment motion to withdraw his
guilty plea. The district court dismissed the petition as untimely. On appeal, the Idaho Supreme
Court held that the post-conviction claims based upon prejudgment proceedings were untimely
because they were not filed within one year of the issuance of the remittitur for the defendant’s
direct appeal. Id. at 837-38, 172 P.3d at 1112-13. However, the Court further held that the claim
that the defendant’s counsel provided ineffective assistance in presenting the motion to withdraw
the plea was timely because the remittitur on direct appeal of that proceeding was not filed until
July 19, 2002, and the petition was filed less than one year later. Id. at 838, 172 P.3d at 1113.
       Here, Peregrina timely filed a direct appeal from the judgment of conviction and the
Idaho Supreme Court remanded the case to the district court for further proceedings.                On
remand, the district court ruled that only one enhanced penalty could be imposed and
resentenced Peregrina. Peregrina again timely appealed from that amended judgment. This
Court affirmed the judgment of conviction and sentences and the remittitur in this last appeal
was issued on November 16, 2012. On November 15, 2013, Peregrina filed the instant petition
for post-conviction relief.
       The district court erred when it concluded that the one-year limitation period began to run
on December 15, 2011--the date the district court entered the amended judgment of conviction
following the remand from Peregrina’s first appeal. The amended judgment of conviction did
not become final until Peregrina’s appeal therefrom became final through entry of the
November 16, 2012, remittitur. This final appeal delayed the start of the one-year limitation

4
       Although the Hauschulz opinion does not directly state this, the remittitur in the direct
appeal was filed on August 2, 2000.
period because it was a proceeding that was an extension of the underlying criminal action and
was part of the continuous stream of events which led to the finality of the judgment of
conviction. See Atkinson, 131 Idaho at 224, 953 P.2d at 664. Indeed, finality may be reached
“upon completion of the case consistent with directives given with a remand from the appellate
court and exhaustion of further appellate remedies.” Freeman, 122 Idaho at 629, 836 P.2d at
1090 (emphasis added). Under the application of I.C. § 19-4902(a) in this case, what particular
issues were raised in the direct appeal is irrelevant. Instead, the determinative factor is when the
judgment of conviction became final. Because Peregrina’s petition was filed within one year of
the date on which the amended judgment of conviction became final (November 16, 2012), his
prejudgment claims of ineffective assistance of trial counsel and deprivation of the right to a
public trial were timely.
                                                IV.
                                         CONCLUSION
       The district court erred when it determined that Peregrina’s post-conviction petition was
untimely filed. Accordingly, the district court’s judgment summarily dismissing Peregrina’s
petition for post-conviction relief is vacated and this case is remanded to the district court for
further proceedings consistent with this opinion. Costs, but not attorney fees, are awarded to
Peregrina on appeal.
       Judge GUTIERREZ and Judge GRATTON, CONCUR.
