IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 47963
STATE OF IDAHO, )
) Filed: February 5, 2021
Plaintiff-Respondent, )
) Melanie Gagnepain, Clerk
v. )
) THIS IS AN UNPUBLISHED
ANTHONY L. CAVALLERO, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Defendant-Appellant. )
)
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County. Hon. Deborah A. Bail, District Judge.
Order denying motion for credit for time served, affirmed.
Eric D. Fredericksen, State Appellate Public Defender; Kimberly A. Coster, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Kacey L. Jones, Deputy Attorney
General, Boise, for respondent.
________________________________________________
HUSKEY, Chief Judge
Anthony L. Cavallero appeals from the district court’s order denying his motion for credit
for time served, asserting the district court erred in denying his motion for credit for time served.
Because Cavallero presented no evidence that his period of prejudgment incarceration is
attributable to the offense for which judgment was entered, the district court did not err when it
denied his motion. Accordingly, the order denying Cavallero’s motion for credit for time served
is affirmed.
I.
FACTUAL AND PROCEDURAL BACKGROUND
The State charged Cavallero with two felony counts of battery on a correctional officer for
Cavallero’s actions against officers while Cavallero was incarcerated. Pursuant to a plea
agreement, Cavallero entered a guilty plea to one count of battery on a correctional officer and the
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State dismissed the additional charge. The district court sentenced Cavallero to five years, with
six months determinate, to run consecutively to the sentences he was already serving, as is required
when a defendant commits a battery on a correctional officer during the performance of his or her
duties. I.C. § 18-915(2)(b).
Cavallero filed a pro se motion for credit for time served and an accompanying affidavit
requesting credit for the time he was incarcerated from the date of the battery through the time of
his sentencing for the offense. The district court denied the motion and Cavallero timely appeals.
II.
STANDARD OF REVIEW
“The question of whether a sentencing court has properly awarded credit for time served
on the facts of a particular case is a question of law, which is subject to free review by this Court.”
State v. Denny, 157 Idaho 217, 219, 335 P.3d 62, 64 (Ct. App. 2014). However, the appellate court
will defer to the trial court’s findings of fact unless they are clearly erroneous. State v. Brown, 163
Idaho 941, 943, 422 P.3d 1147, 1149 (Ct. App. 2018).
III.
ANALYSIS
Cavallero argues that “[m]indful of the requirement that, to receive pre-judgment credit for
time served, a defendant must show that ‘the incarceration is attributable to the offense’ for which
judgment was entered . . . and that such proof is not included within his motion for credit for time
served,” the district court erred by denying his motion for credit for time served. In response, the
State argues the district court did not err in denying Cavallero’s motion.
The awarding of credit for time served is governed by Idaho Code § 18-309. The language
of I.C. § 18-309 is mandatory and requires that, in sentencing a criminal defendant or when hearing
an Idaho Criminal Rule 35(c) motion for credit for time served, the court give the appropriate
credit for prejudgment incarceration. State v. Moore, 156 Idaho 17, 20-21, 319 P.3d 501, 504-05
(Ct. App. 2014). This means that the defendant is entitled to credit for all time spent incarcerated
before judgment. Id. at 21, 319 P.3d at 505. The converse is also true--that the defendant is not
entitled to credit under I.C. § 18-309 for any time not actually spent incarcerated before judgment.
Id.; see also State v. Hernandez, 120 Idaho 785, 792, 820 P.2d 380, 387 (Ct. App. 1991) (stating
that I.C. § 18-309 does not allow the defendant to receive credit for more time than he or she has
actually been in confinement). Accordingly, a district court may only give credit for the correct
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amount of time actually served by the defendant prior to imposition of judgment in the case; the
district court does not have discretion to award credit for time served that is either more or less
than that. Moore, 156 Idaho at 21, 319 P.3d at 505. Thus, the defendant is entitled to credit for
time actually served prior to entry of judgment in the case. Id. Pursuant to I.C. § 18-309(1), a
criminal defendant is entitled to receive credit for time served prior to the entry of judgment only
“if such incarceration was for the offense or an included offense for which the judgment was
entered.”
Here, Cavallero was already incarcerated for an unrelated conviction when he committed
battery on a correctional officer. Cavallero remained incarcerated, serving the unrelated sentence,
throughout the pendency of the present case. Cavallero is not entitled to credit for prejudgment
time served that is only attributable to his prior, unrelated conviction, and Cavallero has not shown
that the period of incarceration for which he seeks credit is attributable to the offense for which
the district court entered judgment in the present case. Therefore, Cavallero has not established
that the district court erred in denying his motion for credit for time served.
IV.
CONCLUSION
Because Cavallero has not shown that the period of prejudgment incarceration for which
he seeks credit is attributable to the battery on a correctional officer offense, the district court did
not err when it denied his motion for credit for time served. Accordingly, the order denying
Cavallero’s motion for credit for time served is affirmed.
Judge LORELLO and Judge BRAILSFORD CONCUR.
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