ALSO SPECIALLY CONCURRING.
‘The time has come, the Legislature said, To give its own retort; Of p.s.i.’s and rider reviews, Of due process and the court.’3
While I agree in the result of the per curiam opinion, I write separately to give voice to the concern that Alvarado’s claim raises a legitimate issue regarding the court’s failure to hold a hearing before relinquishing jurisdiction. Prior to the 1995 legislative amendment noted herein, Idaho appellate courts long adhered to the proposition that a district court need not provide a defendant with a hearing before relinquishing jurisdiction. Nevertheless, the resultant fallout from State v. Ditmars, 98 Idaho 472, 567 P.2d 17 (1977), and State v. Wolfe, 99 Idaho 382, 582 P.2d 728 (1978), has produced a virtual merry-go-round of post-conviction relief actions and appeals regarding how much process is due through the retained jurisdiction program. But see Buffington v. State, 130 Idaho 507, 943 P.2d 933 (1997) (district court hearing before relinquishing jurisdiction will cure any possible procedural due process violations which may have occurred during correctional institution’s jurisdictional review process). This cacophony of litigation reached its high-water mark in Browning v. Vernon, 874 F.Supp. 1112 (D.Idaho 1994), aff'd, 44 F.3d 818 (9th Cir.1995). In 1995, the Idaho Legislature said, metaphorically speaking, “Hold, Enough Already!” and enacted the amendment to Idaho Code § 19-2601(4), purporting to dispense with the requirements of due process at the administrative level. See footnote 1, swpra.
This amendment has sparked a new wave of interest in petitioning this Court to reconcile the Ditmars-Wolfe-I.C. § 19-2601(4) dilemma. At present I can think of at least three (3) plausible alternatives, although creative lawyering from the appellate bar might hypothesize other variations: (1) the amendment simply dispenses with the Wolfe requirements of due process at the institutional level and everything else remains intact; (2) the amendment is unconstitutional and must be disregarded; or (3) the amendment will be upheld, but it now places the requirement of due process at the district court level in the manner of Buffington.
Unfortunately, we cannot reach this issue, i.e., we can’t get there from here, due to Alvarado’s failure to directly appeal from the order relinquishing jurisdiction. I trust the defense bar will “get the message” and properly perfect an appeal on the merits of the issue, unless a proposed amendment to the Idaho Criminal Rules beats them to the punch.
. Freely adapted from Lewis Carroll's The Walrus and the Carpenter in Through the Looking-Glass in The Complete Illustrated Lewis Carroll 170 (Wordsworth 1996) (1872):
'The time has come’, the Walrus said,
'To talk of many things:
Of shoes — and ships — and sealing wax— Of cabbages — and kings.