IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 37265
STATE OF IDAHO, ) 2010 Opinion No. 75
)
Plaintiff-Respondent, ) Filed: November 18, 2010
)
v. ) Stephen W. Kenyon, Clerk
)
EZEIKEL ZEBEROIA WARD, )
)
Defendant-Appellant. )
)
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County. Hon. Cheri C. Copsey, District Judge.
Appeal, dismissed.
Molly J. Huskey, State Appellate Public Defender; Diane M. Walker, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
General, Boise, for respondent.
GRATTON, Judge
Ezeikel Zeberoia Ward pled guilty to possession of a controlled substance. Idaho Code §
37-2732(c). Prior to sentencing, Ward entered into the drug court program. After the State filed
a motion to discharge, Ward withdrew from the program. The district court sentenced Ward to a
unified term of five years, with a minimum period of confinement of two years, and retained
jurisdiction. Following the period of retained jurisdiction, the district court’s jurisdiction was
relinquished and the suspended sentence executed. Ward appeals contending that the district
court abused its discretion by imposing an excessive sentence.
The State asserts that this appeal is untimely. Both parties agree that the judgment of
conviction was entered on May 14, 2009, that the period of retained jurisdiction expired on
1
November 10, 2009, and that the district court lost jurisdiction on that date.1 The district court
held a rider review hearing on November 18, 2009, and entered an order relinquishing
jurisdiction on November 19, 2009. The notice of appeal was filed on December 30, 2009. The
appeal is timely from the order relinquishing jurisdiction, but untimely from the date the district
court lost jurisdiction.
The State asserts that the notice of appeal, challenging the underlying sentence, 2 was
required to be filed within forty-two days from the date the district court lost jurisdiction, Idaho
Appellate Rule 14(a). The State contends that I.A.R. 14(a) only enlarges the time to appeal from
a judgment of conviction “by the length of time the district court actually retains jurisdiction.”
Therefore, the State asserts that by operation of I.C. § 19-2601(4), the retained jurisdiction period
ended on November 10, 2009, not when the district court entered the untimely order
relinquishing jurisdiction. Pursuant to I.A.R. 21, failure to timely appeal is jurisdictional,
requiring dismissal.
Ward argues that he could not appeal before entry of the written order relinquishing
jurisdiction because oral rulings are not appealable, I.A.R. 11(c), and that an appeal before the
entry of a written order is premature, defective, and does not vest jurisdiction in the appellate
court, citing I.A.R. 17(e)(2), Meridian Bowling Lanes v. Meridian Athletic Association, Inc., 105
Idaho 509, 511, 670 P.2d 1294, 1296 (1983), and State v. Gissel, 105 Idaho 287, 290, 668 P.2d
1018, 1021 (Ct. App. 1983). Further, Ward notes that I.A.R. 14 triggers the time for filing an
appeal from the “filing stamp” on the document from which the appeal is taken, suggesting that
until such time as the district court, even though it has lost jurisdiction, files an order
relinquishing jurisdiction, no appeal can be taken.
Ward’s appeal is untimely. Ward raises no issue on appeal relating to the order
relinquishing jurisdiction. Rather, he appeals from the judgment of conviction which was
entered and file stamped on May 14, 2009. If the district court had not retained jurisdiction,
Ward would have been required to file his appeal challenging his sentence within forty-two days
of that date. I.A.R. 14(a). However, since the district court did retain jurisdiction, I.A.R 14(a)
1
Relative to this appeal, I.C. § 19-2601(4) provided for a 180-day period of retained
jurisdiction. The statute has since been amended to provide for a 365-day period of retained
jurisdiction. See 2010 Idaho Sess. Laws, ch. 350, § 1, p. 913.
2
Ward does not challenge the order relinquishing jurisdiction.
2
provides for an enlargement of time to file the notice of appeal challenging the judgment of
conviction. I.A.R. 14(a) states:
In a criminal case, the time to file an appeal is enlarged by the length of time the
district court actually retains jurisdiction pursuant to Idaho Code. When the court
releases its retained jurisdiction or places the defendant on probation, the time
within which to appeal shall commence to run.
The enlargement of time to file a notice of appeal challenging the judgment of conviction
lapses at the time the district court’s retained jurisdiction ceases. The district court “actually”
retains jurisdiction for no more than the time set by the statute, in this case, 180 days, I.C. § 19-
2601(4).3 In State v. Taylor, 142 Idaho 30, 31-32, 121 P.3d 961, 962-963 (2005) the Court stated
that:
The statute only permits a court to retain jurisdiction over a prisoner for 180 [now
365] days. Upon the expiration of that time period, the court loses jurisdiction to
place the prisoner on probation.
. . . Because the 180-day period of retained jurisdiction expired without
the district court affirmatively placing the Defendant on probation, the Defendant
remained committed to the custody of the Idaho Board of Correction. The district
court’s judgment placing the Defendant on probation was therefore void because
the court no longer had jurisdiction.
Id.4 At the expiration of the retained jurisdiction period, the enlargement of time expires and the
time to file a notice of appeal from the judgment of conviction begins to run. The language in
I.A.R. 14(a) which states that “when the court releases its retained jurisdiction or places the
defendant on probation, the time within which to appeal shall commence to run” relates only to
affirmative action by the district court prior to the expiration of its retained jurisdiction. Since,
as stated in Taylor, the district court has no jurisdiction after the statutory time period to place a
defendant on probation, the district court, similarly, lacks jurisdiction to “release” its retained
jurisdiction after it has expired. Therefore, the time to file an appeal, challenging the underlying
sentence, must run from the date the court loses jurisdiction. Thus, in this case, the time to file
an appeal began to run from the time the district court lost jurisdiction and the retained
3
The court may extend the time period by thirty days, so long as it does so prior to the
expiration of the 180-day period. State v. Petersen, ___ Idaho ___, ___, ___ P.3d ___, ___ (Ct.
App. 2010). The district court did not attempt to do so in this case.
4
Idaho Code § 19-2601(4) provides that “the prisoner will remain committed to the board
of correction if not affirmatively placed on probation by the court.”
3
jurisdiction period ceased, November 10, 2009. Ward did not file the notice of appeal within
forty-two days of November 10, 2009, and, hence, the appeal is untimely. Therefore, this appeal
is dismissed.
Chief Judge LANSING and Judge GUTIERREZ, CONCUR.
4