State v. Badgley

BAKES, Chief Justice,

concurring specially.

It may be more a matter of semantics than of substance; however, I would affirm the district court’s judgment and sentence rather than dismissing the appeal and remanding to the district court for further proceedings as the majority opinion does. However, I do not disagree with what I believe to be the substance of what the majority opinion is saying.

Regarding the Court’s dismissal of the appeal, the notice of appeal filed by the defendant Badgley was from the judgment of conviction and sentence entered against him on the 8th day of April, 1988, which judgment and sentence included the terms of probation discussed in the majority opinion. Under Idaho Appellate Rule 11(c)(1) an appeal can be taken to the Supreme Court as a matter of right from final judgments of conviction. Accordingly, I believe it is technically incorrect to dismiss this appeal. Rather, the judgment of the district court should be affirmed. However, the result is much the same, given the majority’s statement that “the particular condition of probation by the trial court is not per se erroneous when viewed in the light of the record before this Court.” Ante at 238, 775 P.2d at 130.

I believe we should affirm the judgment of conviction and sentence of the trial court. In the event that the trial court later attempts to revoke the probation of the defendant Badgley for failure to comply with the terms of the probation, i.e., his failure to identify others that were involved in the instant crime, then at that point the trial court will have to make the determination for which the majority remands this matter to the district court to make, i.e., whether or not “the condition is held to be reasonable and proper and defendant continues to refuse to accept that condition....” Ante at 238, 775 P.2d at 130. After such a probation revocation violation hearing and order, the issue would then be ripe and the record appropriately complete for this Court to review such a probation revocation order on appeal.