IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 38864
STATE OF IDAHO, ) 2012 Unpublished Opinion No. 431
)
Plaintiff-Respondent, ) Filed: April 2, 2012
)
v. ) Stephen W. Kenyon, Clerk
)
BEVERLY A. PINARD, ) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
Defendant-Appellant. ) BE CITED AS AUTHORITY
)
Appeal from the District Court of the First Judicial District, State of Idaho,
Boundary County. Hon. Benjamin R. Simpson, District Judge.
Order denying motion to reduce or expunge felony conviction, affirmed.
Sara B. Thomas, State Appellate Public Defender; Diane M. Walker, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney
General, Boise, for respondent.
________________________________________________
MELANSON, Judge
Beverly A. Pinard appeals from the district court’s order denying her motion to reduce or
expunge her felony conviction. We affirm.
In 2001, Pinard pled guilty to burglary. The district court sentenced Pinard to a unified
term of four years, with a minimum period of confinement of two years, but retained jurisdiction.
Following successful completion of her rider, the district court suspended the sentence and
placed Pinard on probation. A few months later, the district court found that Pinard had violated
the terms of her probation, revoked her probation, but again retained jurisdiction. After she
successfully completed her rider, the district court suspended the sentence and placed Pinard
back on probation. Thereafter, Pinard successfully completed the terms of her probation.
In 2011, Pinard asked the district court to either reduce her felony to a misdemeanor or
expunge the conviction. Following a hearing, the district court found that Pinard had not at all
1
times satisfactorily completed the terms and conditions of her probation and denied Pinard’s
motion. Pinard appeals.
Idaho Code Section 19-2604 permits a trial court to set aside a guilty plea and dismiss a
case if the defendant satisfactorily demonstrates that he or she has at all times complied with the
terms and conditions of probation and if the court is convinced that doing so is compatible with
the public interest. The Idaho Supreme Court has concluded:
The phrase “at all times” means just that. A defendant who has at any time failed
to do what he or she was required to do while on probation in a particular case has
not at all times complied with the terms and conditions of his or her probation in
that case.
State v. Schwartz, 139 Idaho 360, 362, 79 P.3d 719, 721 (2003), abrogated on other grounds by
Verska v. Saint Alphonsus Reg’l Med. Ctr., 151 Idaho 889, 265 P.3d 502 (2011). Thus, it is
insufficient for a defendant to demonstrate compliance with probationary terms to the
satisfaction of the sentencing court, to demonstrate that he or she substantially complied with
those terms, or that he or she complied with the major terms of probation. See State v.
Thompson, 140 Idaho 796, 798, 102 P.3d 1115, 1117 (2004), abrogated on other grounds by
Verska v. Saint Alphonsus Reg’l Med. Ctr., 151 Idaho 889, 265 P.3d 502 (2011). If a defendant
has not complied with the terms of his or her probation at all times, then the trial court lacks the
authority to grant relief under Section 19-2604. See Schwartz, 139 Idaho at 363-64, 79 P.3d at
721-22.
The record indicates that on January 10, 2003, a disposition hearing was held on the
allegations Pinard had violated her probation. Pinard admitted to violating the terms of her
probation. The district court found that Pinard had been in violation of her probation, retained
jurisdiction, and thereafter ordered that probation be reinstated. When a defendant has been
adjudicated to be in violation of probation, the adjudication constitutes prima facie evidence of
noncompliance. State v. Hanes, 137 Idaho 40, 42, 44 P.3d 295, 297 (Ct. App. 2002).
The record in this case establishes that Pinard did not comply with the terms of her
probation at all times pursuant to Section 19-2604. Therefore, the district court’s order denying
Pinard’s motion to reduce or expunge her felony conviction is affirmed.
Chief Judge GRATTON and Judge LANSING, CONCUR.
2