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IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 45455

STATE OF IDAHO,

Plaintiff-Respondent,

v.

RUSSELL ALLEN PASSONS,

Defendant-Appellant.

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Boise, February 2018 Term

2018 Opinion No. 45

Filed: May 1, 2018

Karel A. Lehrman, Clerk

Appeal from the District Court of the First Judicial District of the State of Idaho, 

Kootenai County. Honorable Rich Christensen, District Judge.

The decision of the district court is affirmed.

Eric D. Fredericksen, State Appellate Public Defender, Boise, for appellant. Brian 

R. Dickson argued.

Honorable Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent.

Russell J. Spencer argued.

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BRODY, Justice.

This appeal arises from Russell Allen Passons’s motion to correct an illegal sentence

pursuant to Idaho Criminal Rule 35. The district court denied the motion on the basis of 

controlling precedent of the Court of Appeals. The Court of Appeals relied on that precedent to 

affirm the district court’s decision. We granted Passons’s petition for review, and now affirm the 

decision of the district court.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 2012, Passons was charged with two counts of aggravated assault and a third count of 

burglary. He was later convicted by a jury of all three counts. Relevant for this appeal are the 

allegations particular to one of the aggravated assault counts under Idaho Code section 18-905 

and a corresponding request for sentencing enhancement under Idaho Code section 19-2520. 

Those allegations read as follows (emphasis added):
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That the defendant, Russell Allen Passons, on or about the 21st day of June, 2012, 

in the County of Kootenai, State of Idaho, did intentionally, unlawfully and with 

apparent ability threaten by word or act to do violence upon the person of

[victim’s name] with a deadly weapon, to-wit: a knife, which created a wellfounded fear in said person that such violence was imminent;

. . . .

The Prosecuting Attorney further informs the Court that the defendant, Russell 

Allen Passons, on or about the 21st day of June, 2012, in the County of Kootenai, 

State of Idaho, did use a deadly weapon in the commission of a felony, to-wit: by 

Passons using a knife to commit the felony crime(s) of Aggravated Assault, all of 

which is contrary to the form, force and effect of the statute in such case made 

and provided and against the peace and dignity of the People of the State of Idaho.

Following his conviction, Passons was sentenced to a term of twenty years, with ten years 

fixed, on the relevant count, which reflects that the district court enhanced the sentence pursuant 

to section 19-2520. The district court also imposed concurrent sentences of five years, all fixed,

on the other aggravated assault count, and ten years, with five years fixed, on the burglary count. 

Passons appealed the judgment of conviction, which was ultimately affirmed by the Court of 

Appeals. State v. Passons, 158 Idaho 286, 346 P.3d 303 (Ct. App. 2015).

From there, Passons filed a Rule 35 motion, contending that his enhanced sentence was 

illegal. The district court denied Passons’s motion after finding that it was bound by the Court of 

Appeals’ decision in State v. Hernandez, 120 Idaho 653, 818 P.2d 768 (Ct. App. 1991). Passons 

appealed. The Court of Appeals affirmed the district court, holding that the decision was proper 

and that, under the rule of stare decisis, the decision in Hernandez was not “manifestly wrong” 

such that the court was required to overturn its precedent. State v. Passons, No. 44388, 2017 WL 

3091747 (Ct. App. July 21, 2017). Thereafter, we granted Passons’s petition for review.

II. STANDARD OF REVIEW

“In cases that come before this Court on a petition for review of a Court of Appeals 

decision, this Court gives serious consideration to the views of the Court of Appeals, but directly 

reviews the decision of the lower court.” State v. Garcia-Rodriguez, 162 Idaho 271, 274, 396 

P.3d 700, 703 (2017) (quoting State v. Oliver, 144 Idaho 722, 724, 170 P.3d 387, 389 (2007)).

“This Court thus acts as if the case were on direct appeal from the district court.” Id. (quoting 

State v. James, 148 Idaho 574, 576, 225 P.3d 1169, 1171 (2010)).

Idaho Criminal Rule 35 enables a trial court to “correct a sentence that is illegal from the 

face of the record at any time.” I.C.R. 35(a). Whether this rule is implicated generally raises a 

question of law, for which this Court exercises free review. State v. Clements, 148 Idaho 82, 84, 
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218 P.3d 1143, 1145 (2009) (citing State v. Farwell, 144 Idaho 732, 735, 170 P.3d 397, 400 

(2007)).

III. ANALYSIS

Passons asks this Court to consider whether the district court erred in denying his Rule 35 

motion. Before turning to the substantive arguments underlying that ruling, we must first address 

a pair of procedural objections raised by the State in its opposition to the motion.

A. Passons’s motion was not barred by the State’s procedural objections for lack of 

jurisdiction and res judicata.

In its response on appeal, the State contends that the district court lacked jurisdiction to 

consider Passon’s motion because the motion was, in substance, an untimely appeal from his 

judgment of conviction. The State also argues that even if the district court had jurisdiction, the

motion was barred under res judicata due to Passons’s prior appeal of the judgment of conviction.

The State’s arguments are not persuasive.

Starting with the jurisdictional issue, this Court considered an identical argument from 

the State in State v. Kerrigan, 143 Idaho 185, 141 P.3d 1054 (2006). In that case, we explained 

that “[a]lthough a judgment of conviction and the resulting sentence are related matters, they are 

not identical issues. The fact that Kerrigan challenges the legality of his sentence is not, as the 

State suggests, tantamount to an attack on his underlying conviction.” Id. at 187, 141 P.3d at 

1056. Review of Passons’s motion and his briefing on appeal leads to the same conclusion—

namely, he is not attacking the underlying conviction, but instead timely challenging the legality 

of his sentence within the scope of Rule 35.

The State’s second argument is also without support. The State’s theory of res judicata 

relies on the same logic that the State uses in its jurisdictional challenge: that is, Passons is 

merely attempting to once again appeal the judgment of conviction. Recognizing that this logic is 

without factual support, the State’s contention that Passons is precluded from again raising 

arguments against his conviction is a nonstarter. Given this, and when recognizing the actual 

issue presented by Passons’s motion, this Court’s precedent undermines the State’s argument for 

either issue or claim preclusion. Ticor Title Co. v. Stanion, 144 Idaho 119, 123–24, 157 P.3d 613, 

617–18 (2007); State v. Rhoades, 134 Idaho 862, 863, 11 P.3d 481, 482 (2000).

B. The enhanced sentence authorized by Idaho Code section 19-2520 does not give rise 

to double jeopardy concerns.
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Moving to the primary issue on appeal, Passons argues that his enhanced sentence for the

aggravated assault conviction violated his constitutional protection from double jeopardy. The 

United States and Idaho Constitutions each afford the right to be protected from double jeopardy. 

The Fifth Amendment of the U.S. Constitution states that no person shall “be subject for the 

same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V; Benton v. 

Maryland, 395 U.S. 784, 794 (1969) (incorporating right through the Fourteenth Amendment). 

Article I, section 13 of the Idaho Constitution reads similarly: “No person shall be twice put in 

jeopardy for the same offense . . . .” Under both Constitutions, the prohibition against double 

jeopardy breaks down into three specific protections: (1) against a second prosecution for the 

same offense after acquittal, (2) against a second prosecution for the same offense after 

conviction, and (3) against multiple punishments for the same offense. Ohio v. Johnson, 467 U.S. 

493, 498 (1984) (quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969)); State v. Avelar, 

132 Idaho 775, 778, 979 P.2d 648, 651 (1999).

Passons contends that the district court violated the third guarantee by subjecting him to 

multiple punishments for the same offense when it applied Idaho Code section 19-2520 to 

enhance his sentence. Section 19-2520 provides for sentencing enhancement of fifteen years 

when certain enumerated offenses are committed using a firearm or other deadly weapon. I.C. 

§ 19-2520. Amongst the underlying offenses is aggravated assault, conviction of which is 

punishable up to five years without enhancement. I.C. §§ 18-905, 18-906.

This Court has previously explained that section 19-2520 “does not prescribe a new 

offense but provides only for the imposition of additional punishment” upon conviction of an 

underlying offense where a firearm or other deadly weapon was involved. State v. Smith, 103 

Idaho 135, 137, 645 P.2d 369, 371 (1982) (citing State v. Cardona, 102 Idaho 688, 690, 637 P.2d 

1164, 1166 (1981)). Because section 19-2520 only provides for additional punishment and not an 

additional offense, the Court concluded in Smith that “[a] sentence imposed under [the statute] 

does not create double jeopardy problems.” Id.; see also Farwell, 144 Idaho at 736, 170 P.3d at

401 (noting that a sentencing enhancement “is not a new offense” and “not a separate sentence”); 

State v. Burnight, 132 Idaho 654, 658–59, 978 P.2d 214, 218–19 (1999) (explaining that the 

“enhancement is an additional term and is part of a single sentence for the underlying crime”).

Shortly after our decision in Smith, the U.S. Supreme Court issued its opinion in Missouri 

v. Hunter, 459 U.S. 359, 368 (1983), wherein it explained that additional or “cumulative” 
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punishment imposed through two statutes that proscribe the same conduct constituted double 

jeopardy absent legislative authorization for punishment of this nature. The Court’s decision in 

Hunter indicates that our consideration of double jeopardy through multiple punishments is 

predicated on two issues of legislative intent. First, the Legislature needs to have enacted 

multiple statutes that separately proscribe the same offense. 459 U.S. at 368. Second, assuming 

that punishment through each of these statutes is at stake, the Legislature must have expressly 

authorized for the punishments to be imposed lest their imposition constitutes double jeopardy. 

Id.

In Hunter, the defendant was sentenced under the Missouri statutes for first-degree 

robbery and “armed criminal action.” 459 U.S. at 360. The armed criminal action statute 

prescribed a separate crime that allowed for additional punishment where an underlying felony 

was committed involving the use of a “dangerous or deadly weapon.” Id. at 362 (citing Mo. Ann. 

Stat. § 560.225 (West 1979)). Hunter arose after the Missouri Supreme Court had held that, 

notwithstanding clear legislative intent to subject defendants to punishment under the armed 

criminal action statute in addition to the punishment for the underlying felony, the U.S. Supreme 

Court’s double jeopardy precedent barred enforcement of multiple punishments where the same 

conduct of the defendant was used to convict him of each offense. Id. at 364–65 (citing to Sours 

v. State, 593 S.W.2d 208, 216 (Mo. 1980), vacated sub nom. Missouri v. Sours, 446 U.S. 962 

(1980)). The U.S. Supreme Court found this to be a misreading of its precedent, explaining that 

merely because two statutes may be interpreted to proscribe the same conduct does not mean that 

imposition of punishment through both statutes violates the Double Jeopardy Clause. Id. at 365–

68 (citing Whalen v. United States, 445 U.S. 684 (1980) (statutes for rape and felony-murder), 

and Albernaz v. United States, 450 U.S. 333 (1981) (statutes for conspiracy to import marijuana 

and conspiracy to distribute marijuana)). Rather, the Court continued, punishment of this nature 

is permissible if there is clear legislative intent for its imposition. Id. at 368. Because the 

Missouri Supreme Court had already recognized that its legislature clearly intended to authorize 

punishment under both statutes, the U.S. Supreme Court held that its imposition was not a 

violation of the Double Jeopardy Clause. Id. at 368–69.

Here, Passons contends that his enhanced sentence fits the mold of the punishment 

described in Hunter. He focuses his appeal on the second issue of legislative intent, and argues 

that, unlike the armed criminal action statute in Hunter, section 19-2520 does not expressly 
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authorize his punishment, and, therefore, its imposition was unconstitutional double jeopardy. 

This Court has cited to Hunter in consideration of double jeopardy issues; however, we have not 

yet been asked to address that decision in relation to section 19-2520. See State v. Olsen, 161 

Idaho 385, 391, 386 P.3d 908, 914 (2016) (affirming convictions for three separate offenses 

arising from violations of a statute proscribing misuse of public funds); State v. Osweiler, 140 

Idaho 824, 826–27, 103 P.3d 437, 439–40 (2004) (affirming convictions for trafficking in 

methamphetamine by manufacturing it and manufacturing methamphetamine on premises where 

a child was present). On the other hand, the Court of Appeals has integrated the Hunter decision

into its cases raising double jeopardy concerns under section 19-2520. See, e.g., State v. Galaviz, 

104 Idaho 328, 330–31, 658 P.2d 999, 1001–02 (Ct. App. 1983); State v. Metzgar, 109 Idaho 732, 

734–35, 210 P.2d 642, 644–45 (Ct. App. 1985).

While Passons does not ask this Court to overrule its decision in Smith, the express 

holding in that case—i.e., section 19-2520 does not implicate double jeopardy concerns—reveals

that we would need to depart from our earlier decision if we are to consider Passons’s argument 

to its end. We find this to be unnecessary, however, as Passons’s effort to draw this case parallel 

to Hunter is misguided due to a fundamental difference in the statutes at issue in each case.

Turning to the relevant statutory text, the Missouri armed criminal action statute at issue 

in Hunter provided:

[A]ny person who commits any felony under the laws of this state by, with, or 

through the use, assistance, or aid of a dangerous or deadly weapon is also guilty 

of the crime of armed criminal action and, upon conviction, shall be punished by 

imprisonment by the division of corrections for a term of not less than three years. 

The punishment imposed pursuant to this subsection shall be in addition to any 

punishment provided by law for the crime committed by, with, or through the use, 

assistance, or aid of a dangerous or deadly weapon. No person convicted under 

this subsection shall be eligible for parole, probation, conditional release or 

suspended imposition or execution of sentence for a period of three calendar 

years.

459 U.S. at 362 (emphasis added) (quoting Mo. Ann. Stat. § 560.225).

In contrast, section 19-2520 provides:

Any person convicted of a violation of sections 18-905 (aggravated assault 

defined), 18-907 (aggravated battery defined), 18-909 (assault with intent to 

commit a serious felony defined), 18-911 (battery with intent to commit a serious 

felony defined), 18-1401 (burglary defined), 18-1508(3), 18-1508(4), 18-1508(5), 

18-1508(6) (lewd conduct with minor or child under sixteen), 18-2501 (rescuing 

prisoners), 18-2505 (escape by one charged with or convicted of a felony), 18-
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2506 (escape by one charged with or convicted of a misdemeanor), 18-4003 

(degrees of murder), 18-4006 (manslaughter), 18-4015 (assault with intent to 

murder), 18-4501 (kidnapping defined), 18-5001 (mayhem defined), 18-6101 

(rape defined), 18-6501 (robbery defined), 37-2732(a) (delivery, manufacture or 

possession of a controlled substance with intent to deliver) or 37-2732B 

(trafficking), Idaho Code, who displayed, used, threatened, or attempted to use a 

firearm or other deadly weapon while committing or attempting to commit the 

crime, shall be sentenced to an extended term of imprisonment. The extended 

term of imprisonment authorized in this section shall be computed by increasing 

the maximum sentence authorized for the crime for which the person was 

convicted by fifteen (15) years.

For the purposes of this section, “firearm” means any deadly weapon capable of 

ejecting or propelling one (1) or more projectiles by the action of any explosive or 

combustible propellant, and includes unloaded firearms and firearms which are 

inoperable but which can readily be rendered operable.

The additional terms provided in this section shall not be imposed unless the fact 

of displaying, using, threatening, or attempting to use a firearm or other deadly 

weapon while committing the crime is separately charged in the information or 

indictment and admitted by the accused or found to be true by the trier of fact at 

the trial of the substantive crime.

This section shall apply even in those cases where the use of a firearm is an 

element of the offense.

I.C. § 19-2520 (emphasis added).

When compared, the emphasized language in each statute illustrates the crucial 

difference: the Missouri statute expressly prescribes a second, independent crime, whereas the

Idaho statute reads solely to authorize enhancement of a sentence for an underlying crime. The 

Missouri Supreme Court recognized this precise distinction when it was considering the armed 

criminal action statute, explaining that it “provide[d] for more than merely an enhanced 

sentence. . . . The armed criminal action statute calls for conviction of a second crime and for the 

imposition of a second sentence.” Sours, 593 S.W.2d at 216. As noted above, the U.S. Supreme 

Court deferred to the Missouri court’s construction of the statute. Hunter, 459 U.S. at 368.

In other words, the double jeopardy issue in Hunter was premised on the existence of two

statutes prescribing two different crimes (robbery and armed criminal action). This Court has 

already considered this possibility with regard to section 19-2520. In Smith, we reached the 

opposite conclusion, holding that the statute does not separately proscribe a substantive offense. 

Instead of prescribing an offense, the language of the statute reveals that the Idaho Legislature 

has authorized courts to impose enhanced sentences when certain crimes are committed using a 
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firearm or deadly weapon. I.C. § 19-2520. An enhanced sentence does not place the defendant in 

new jeopardy but instead imposes a harsher penalty for the underlying offense. See United States 

v. Watts, 519 U.S. 148, 154–55 (1997) (“[S]entencing enhancements do not punish a defendant 

for crimes of which he was not convicted, but rather increase his sentence because of the manner 

in which he committed the crime of conviction.” (citing Witte v. United States, 515 U.S. 389, 

402–03 (1995))); see also Cardona, 102 Idaho at 670, 637 P.2d at 1164 (analogizing section 19-

2520 to enhancement for habitual offenders under Idaho Code section 19-2514). Herein lies the 

reasoning for the Court’s conclusion in Smith that section 19-2520 does not create double 

jeopardy concerns. Namely, in that case the Court directly addressed the first issue of legislative 

intent and answered in the negative: the Legislature has not enacted multiple statutes that 

separately proscribe the same offense. Hunter does not require us to disturb that decision because 

the Hunter decision was based on a second statute that was different in form and function from 

section 19-2520.

The dissent correctly notes that Smith involved the use of a firearm; moreover, the 

version of the statute applicable to that decision dealt exclusively with the use of firearms before 

a later amendment added the “or other deadly weapon” language. 103 Idaho at 136 n.1, 371 P.2d 

at 370 n.1. Nonetheless, the crux of the Court’s decision in Smith was its holding that section 19-

2520 does not implicate double jeopardy because it does not prescribe a second crime. Id. at 137, 

371 P.2d at 371. Despite this holding, the dissent here concludes that section 19-2520 constitutes 

a separate substantive offense, and therefore Passons’s underlying aggravated assault conviction 

is a lesser-included offense of section 19-2520. This exact argument was rejected by this Court in 

Smith. Id.; see also Cardona, 102 Idaho at 670, 637 P.2d at 1166 (“[Section] 19-2520 does not 

by its terms make the carrying of a firearm during a felony a separate felony nor fix a mandatory 

sentence for such additional crime . . . .”).

The holding in Smith effectively undermines the foundation of Passons’s argument 

regarding the second issue of legislative intent. Simply, without first having multiple statutes that 

separately proscribe the same offense, we need not further consider whether the Legislature has 

expressly authorized for cumulative punishment to be imposed through such statutes. That being 

the case, we instead hold that Passons’s double jeopardy argument fails and the district court’s 

denial of his Rule 35 motion was proper.
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As a final matter, our decision here relies on reasoning different from that found in the 

Court of Appeals’s decisions citing to Hunter. Under Idaho’s appellate system this Court does 

not overrule decisions of the Court of Appeals even if it disagrees with them. See State v. 

Rawlings, 159 Idaho 498, 505, 363 P.3d 339, 346 (2015). Nonetheless, in light of the foregoing,

we will use this decision as an opportunity to reject that connection to Hunter and emphasize that 

in the context of section 19-2520 this Court’s decision in Smith remains the relevant precedent. 

Based on the present circumstances, procedurally, we recognize that, notwithstanding the district 

court’s proper adherence to binding precedent, the underlying decision can be affirmed on 

different grounds.

IV. CONCLUSION

We affirm the district court’s order denying Passons’s motion.

Chief Justice BURDICK, Justice BEVAN, and Justice Pro Tem TROUT CONCUR.

WIEBE, Justice Pro Tem, dissenting.

I respectfully dissent from the majority’s conclusion that Passons’s enhanced sentence 

does not implicate double jeopardy concerns. Instead, I would hold that the district court 

unconstitutionally imposed cumulative punishment through its application of Idaho Code 

sections 19-2520 and 18-905. As a fundamental right, we are afforded protection from the risk of 

being punished for the same crime twice. U.S. Const. amend. V; Idaho Const. art. I, § 13. 

Passons argues that the district court violated this right when it applied Idaho Code section 19-

2520 to enhance his sentence because it subjected him to multiple punishments for the same 

offense. I agree.

The majority seeks to distinguish this case from the United States Supreme Court case of 

Missouri v. Hunter, 459 U.S. 359 (1983). In Hunter, the defendant was sentenced under the 

Missouri statutes for first-degree robbery and “armed criminal action,” which prescribed a 

separate crime that allowed for additional, enhanced punishment where an underlying felony was 

committed involving the use of a “dangerous or deadly weapon.” Id. at 360–62 (citing Mo. Ann. 

Stat. § 560.225 (West 1979)). The Supreme Court explained that additional or cumulative

punishment imposed through two statutes for the same conduct constituted double jeopardy 

absent legislative authorization for punishment of this nature. Id. at 366. While the Supreme 
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Court ultimately determined that there was no double jeopardy violation in Hunter, that decision 

was based on the Missouri Legislature’s express authorization for cumulative punishment under 

the two statutes. Id. at 368–69.

Here, Passons was convicted of using a knife to commit aggravated assault, which is 

defined in section 18-905 as an assault: 

(a) With a deadly weapon or instrument without intent to kill; or

(b) By any means or force likely to produce great bodily harm.[; or]

(c) With any vitriol, corrosive acid, or a caustic chemical of any kind.

(d) "Deadly weapon or instrument" as used in this chapter is defined to include 

any firearm, though unloaded or so defective that it cannot be fired.

I.C. § 18-905. For a sentence enhancement to apply under section 19-2520 there must be: (1) a 

conviction under one of the enumerated offenses, and (2) the display, use, threat, or attempted 

use of a firearm or other deadly weapon in commission or attempted commission of the 

underlying offense. I.C. § 19-2520. Because section 19-2520 requires showing that the defendant 

has been convicted of the underlying offense, its application cannot be had without proof of 

every element of that offense. Therefore, the underlying offense—i.e., Passons’s conviction of 

aggravated assault under section 18-905—must be a lesser-included offense of section 19-2520.

Therefore, the application of section 19-2520 imposes additional punishment for the same 

offense as the underlying conviction. The Legislature must authorize such a punishment to avoid 

double jeopardy concerns. See Hunter, 459 U.S. at 366 (cumulative punishment imposed through 

two statutes for the same conduct constituted double jeopardy absent legislative authorization); 

see also Whalen v. United States, 445 U.S. 684, 689 (1980) (explaining that if multiple 

punishments for the same offense are imposed absent express legislative authorization, the court 

is acting beyond its own authority in violation of the constitutional guarantee against double 

jeopardy and the constitutional principle of separation of powers.).

When resolving issues of legislative intent, we first look to the language of the statute. 

See Verska v. Saint Alphonsus Reg’l Med. Ctr., 151 Idaho 889, 893, 265 P.3d 502, 506 (2011) 

(quoting State v. Schwartz, 139 Idaho 360, 362, 79 P.3d 719, 721 (2003)). The statutory text 

must be given its plain, usual, and ordinary meaning while construing the statute as a whole. Id.

If the statute is unambiguous, its plain language controls. Id. “A statute is ambiguous where the 

language is capable of more than one reasonable construction.” Id. at 896, 265 P.3d at 509 

(quoting Porter v. Bd. of Trs., Preston Sch. Dist. No. 201, 141 Idaho 11, 14, 105 P.3d 671, 674 
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(2004)). “An unambiguous statute would have only one reasonable interpretation. An alternative 

interpretation that is unreasonable would not make it ambiguous.” Id. (citing In re Application 

for Permit No. 36–7200, 121 Idaho 819, 823–24, 828 P.2d 848, 852–53 (1992)). Where the 

statute is unambiguous, the Court does not consult legislative history and other extrinsic 

evidence in an effort to alter the clearly expressed legislative intent. Id. at 893, 265 P.3d at 506 

(quoting City of Sun Valley v. Sun Valley Co., 123 Idaho 665, 667, 851 P.2d 961, 963 (1993)). As 

previously explained, “[w]e must follow the law as written. If it is socially or economically 

unsound, the power to correct it is legislative, not judicial.” Id. at 895, 265 P.3d at 508 (quoting 

Herndon v. West, 87 Idaho 335, 339, 393 P.2d 35, 37 (1964)).

The plain language of section 19-2520 does not expressly authorize an enhancement in 

cases where the use of a non-firearm deadly weapon constitutes an element of the offense. On its 

face, the final sentence of section 19-2520, “[t]his section shall apply even in those cases where 

the use of a firearm is an element of the offense,” appears to clearly authorize cumulative 

punishments when a person is convicted of one of the underlying offenses where use of a firearm 

is an element of that offense. However, the statute does not include an analogous provision for 

cases where the use of a non-firearm deadly weapon is an element of the offense. I would hold 

that the Legislature’s failure to include any mention of a non-firearm in the final sentence is 

dispositive. State v. Michael, 111 Idaho 930, 933, 729 P.2d 405, 408 (1986) (“When a statute 

enumerates the areas which are to be encompassed in its enforcement, it is generally accepted 

that those areas not specifically mentioned are not to be included.”).

In light of the foregoing analysis, the majority’s reliance on State v. Smith, 103 Idaho 

135, 645 P.2d 369 (1982), is misplaced. Specifically, the holding of Smith is inapposite to the 

case at hand because it involved the use of a firearm in the commission of the underlying 

offense. Id. at 137, 645 P.2d at 371. Here, it is the Legislature’s failure to extend the application 

of section 19-2520 to cases that involve a non-firearm that implicates Passons’s double jeopardy 

concerns. Accordingly, I would reverse the district court’s decision.