State v. Summers - Case Law

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 45623

STATE OF IDAHO, )
) Filed: September 5, 2018
Plaintiff-Respondent, )
) Karel A. Lehrman, Clerk
v. )
) THIS IS AN UNPUBLISHED
KIM C. SUMMERS, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Defendant-Appellant. )
)

Appeal from the District Court of the Seventh Judicial District, State of Idaho,
Bonneville County. Hon. Joel E. Tingey, District Judge.

Order denying Idaho Criminal Rule 35, affirmed.

Eric D. Fredericksen, State Appellate Public Defender; Justin M. Curtis, Deputy
Appellate Public Defender, Boise, for appellant.

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

Before GRATTON, Chief Judge; HUSKEY, Judge;
and LORELLO, Judge
________________________________________________

Kim C. Summers pleaded guilty to possession of a controlled substance,
methamphetamine, Idaho Code § 37-2732(c)(1). The district court imposed a unified sentence of
seven years, with two years determinate. The district court retained jurisdiction and ordered
Summers to report to the jail a few days after imposition of sentence to serve his period of
retained jurisdiction. Summers failed to report to jail. A bench warrant was issued and
eventually Summers was arrested. The district court relinquished jurisdiction and executed the
underlying sentence. Summers filed an untimely Idaho Criminal Rule 35 motion, which the
district court denied. Summers appeals.

1
Idaho Criminal Rule 35 provides that a district court has discretion to consider and act
upon a motion filed within 120 days of the order relinquishing jurisdiction. The filing limitations
provided by I.C.R. 35 are a jurisdictional limit on the authority of the court to consider the
motion and, unless filed within the period, a district court lacks jurisdiction to grant any relief.
State v. Sutton, 113 Idaho 832, 833, 748 P.2d 416, 417 (Ct. App. 1987). In this case, Summer
acknowledges that his I.C.R. 35 motion for reduction of sentence was untimely. Because
Summer’s I.C.R. 35 motion was not filed within the 120-day limitation provided by the rule, the
district court lacked jurisdiction to consider it. Accordingly, we do not address the merits of
Summary’s I.C.R. 35 motion. Therefore, the district court’s order denying Summer’s I.C.R. 35
motion is affirmed.