1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 45199

STATE OF IDAHO ,
Plaintiff

- Appellant ,

v.

RANDALL JEROME BILLUPS ,
Defendant

- Respondent

. ) ) ) ) ) ) ) ) ) ) Filed: June 20, 2018
Karel A. Lehrman, Clerk

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Lynn G. Norton , District Judge.
Order granting motion to dismiss
, reversed and case r emanded

. Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen , Deputy Attorney General, Boise, for appellant. Kenneth K. Jorgensen argued

. R. Thomas Curl, Boise, for respondent.

________________________________________________ WALTERS , Judge Pro Tem The State appeals from the district court’s order granting Randall Jerome Billups’ motion
to dismiss a charge of conspiracy to traffic in heroin following a reversal of his conviction. The State argues the district court erred in concluding that the absence of the word “remand” in the Court of Appeals’ o pinion mandated dismissal of the charge against Billups . For the reasons provided below, we reverse and remand.
I.
FACTUAL AND PROCEDURAL BACKGROUND In the underlying case, Billups was charged with conspiracy to traffic in heroin. Prior to trial, Billups filed a motion to suppress statements made by him and text messages obtained from his phone after he was in custody. T he district court denied Billups’ motion , and he proceeded to
trial

. The State’s case

- in

- chief consisted of the testimony of six witnesses, including the

t estimony of Billups’ alleged co

- conspirator, and thirty

- four exhibits, several of which were2 photos of text messages from Billups’ phone. At the trial’s conclusion, the jury found Billups guilty
, and the district court entered a judgment of conviction. Billups appealed. On appeal, Billups did not challenge his judgment of conviction based on evidentiary sufficiency, but rather challenged only the district court ’s order denying his motion to suppress Billups’ post

- arrest state ments and text messages obtained from his phone while he was in custody. Billups did not challenge any othe r evidence admitted at trial. In the previous appeal,

t his Court solely reviewed the district court’s order regarding Billups’ post

- arrest statemen ts and text messages after he was in custody. State v. Billups
, Docket No. 43571 (C t . App. Mar

. 9, 2017) ( Billups I ) (unpublished)

. In conclusion, we stated : The district court erred in denying Billups’ motion to suppress because Billups’ illegal arrest rendered his subsequent incriminating statements and text messages inadmissible. We therefore reverse Billups’ judgment of conviction for felony conspiracy to traffic heroin.
Id. The opinion did not contain the word “remand.” A remittitur was issued, st ating that the district court must “forthwith comply with the directive of the Unpublished Opinion, if any action is required.”
At a status conference f ollowing the appeal, the State requested the case be set for a new trial. Billups objected and moved to dismiss, w hich the district court granted. In dismissing the case, the district court stated: “This is a judgment of conviction. It was reversed after trial. It was not reversed and remanded, so with that, I am going to dismiss the case and discharg e the
defendant.” The State filed a motion to reconsider, arguing th at proper application of Idaho
A ppellate Rule 38(c ) should have resulted in the district court vacating the judgment of conviction, entering an order to suppress the pertinent evidence, a nd proceeding forward as if the suppression had originally been granted, which would allow for a new trial if the State elected to proceed. The district court denied the motion to reconsider, determining that it did not have jurisdiction to proceed with t he case and agreed with Billups that dismissal was proper because the Court of Appeals did not “reverse and reman d,” rather, it merely “reversed. ” The State timely appeals.
II

. ANALYSIS The State argues the district court ignored clear precedent in dismissing the cha rge and discharging Billups. The State reasons that nothing in the Billups I opinion precluded the case3 from proceeding to a new trial. The State maintains that when faced with a case after reversal of suppression denial , a trial court has the authority to take both actions that it is specifically directed to take, as well as those which are subsidiary to the directives of the appellate court.
Here , whereas a new trial was subsidiary to the relief of vacating the judgment and granting

s uppression , the district court erred in dismissing the charge

. Billups argues that our opinion specifically omitted the words “reversed and remanded
, ” and therefore no direction was given to the district court to comply with other than to reverse the jud gment of conviction. Further
, Billups argues this Court was unambiguous in our directive. In support, Billups points to the portion of our opinion which states: Billups’ arrest was based merely on his presence in A.H. ’ s vehicle. Besides his presence i n the car, nothing tied Billups to the package. Billups’ mere presence does not lend itself to an honest and strong presumption that Billups was guilty of any crime. An officer could not reasonably infer, based on the totality of the circumstances, that Billups was involved in criminal activity. . . . In sum, the totality of the circumstances does not demonstrate a probability or substantial chance that Billups was involved in any criminal activity. Accordingly, the detective lacked probable cause to arrest Billups before transporting Billups to the police station for questioning. Billups argues that this is an unambiguous statement that arrest was improper and that we clear ly intended to release Billups from the charge of conspiracy to traffic in heroin. He also argues that since we omitted the word remand, the requirement to “comply forthwith” was adhered to. Generally speaking, a remittitur terminates appellate jurisdic tion and reinstates the lower court’s jurisdiction over a case. Remittitur is defined as “a sending back from an appellate or superior [court] to a trial or inferior court of a case and its record for further proceedings (as additional findings of fact) o r for entry of a final judgment in accordance with the instructions o r the decision of the appellate or superior court.” W EBSTER ’ S T HIRD I NTERNATIONAL D ICTIONARY 1921 (1993). Upon issuance of a remittitur, the district court is instructed to take actions that are consistent with the opinion issued by the appellate court. See I.A.R. 38(c). As the district court pointed out, when a conviction is reversed, the district court must take action in order for the appellate opinion to take effec t . This means that the case requires remand to the district court, at least to vacate the judgment. The issue is whether the district court was precluded from taking any other action. I daho Appellate Rule 38 (c) provides: When the opinion filed has becom e final in accordance with this rule, the Clerk of the Supreme Court shall issue and file a remittitur with the district court or administrative agency appealed from and mail copies to all parties to the appeal4 and to the presiding district j udge or chairm an of the agency. The remittitur shall advise the district court or administrative agency that the opinion has become final and that the district court or administrative agency shall forthwith comply with the directive of the opinion. ( E mphasis added

. ) The application of a procedural rule is a question of law
, which we review de

novo. See State v. Castro , 145 Idaho 173, 175, 177 P.3d 387, 389 (2008); Smith by and through
Smith v. Treasure Valley Seed Co. , LLC , 161 Idaho 107, 109, 383 P.3d 1277, 1279 (2016). As
I.A.R. 38 (c) states in relevant part : “ the district court or administrative agency shall forthwith comply with the directive of the opinion. ” (Emphasis added.) This is a positive statement in that the district court is required to comply wit h the appellate directive. It does not carry with it the
idea that silence likewise directs a district court , as Billups suggests

. Because the opinion reversed the judgment of conviction, the directive of the opinion was for the district court to

enter a n order setting aside the judgment of conviction and enter an order to suppress the pertinent evidence obtained as a result of the illegal arrest. On the first appeal, we extensively discussed the circumstances leading up to Billups’

arrest an d the eviden ce resulting from his arrest ; however, we provided no discussion regarding
retrial

. Indeed, there is absolutely no discussion regarding untainted evidence or the sufficiency of evidence of Billups’ guilt. We limited our discussion to the temp oral limits of Billups’ arrest, holding that
, based on the totality of the circumstances, an officer could not reasonably infer that
, at the time of his arrest
, Billups was involved in criminal activity
, and therefore there was no probable cause to justify his arrest. In Billups I , we made no comment pertaining to the ultimate question of whether there was sufficient evidence to convict Billups of conspiracy to traffic in heroin, as that issue was not be fore this C ourt. Likewise, we made no comment, as the State requests us to conclude, as to whether a new trial was required or warranted, but rather merely
stated : “the detective lacked probable cause to arrest Billups before transporting Billups to the police station for questioning.” Id. Accordingly, the statements made by Billups and the text messages from his phone required suppression. Contrary to Billups ’ argument, our holding in Billups I did not establish that the words chosen by the Court wer e intended to preclude retrial. Rather, the holding supported a reversal of the district court’s order denying suppression of the evidence o btained as a result of Billups’ illegal arrest and nothing more. Additionally, Billups’ reliance on the strict rea ding of I.A.R. 38 is not aligned with the Idaho Supreme Court’s conclusion that the rule is merely the codification5 of the law of the case doctrine. State v. Hawkins , 155 Idaho 69, 74, 305 P.3d 513, 518 (2013). Apart from requiring that lower courts must follow the law articulated by the higher court when dealing with cases on remand, I.A.R. 38 merely provides the means by which the appellate opinion and case is resolved and transferred back to the lower court. Regardless of a specific
directive to reman d the case, this Court generally reversed Billups’ conviction thereby directing the district court to reverse its denial of the suppression motion. Therefore, the case was returned to its status prior to that denial.
A determination that an error was ma de in the pretrial stages does not address whether the evidence was insufficient to sustain a guilty verdict. Burks v. United S tates , 437 U.S. 1, 8 (1978). It solely addresses the issue of whether the evidence should have been admitted in the
first insta nce. When an appellate court determines that evidence was admitted in error, no determination ordinarily is made as to whether the remaining admissible evidence is sufficient, which would require acquittal and/or dismissal of the charges. A reversal of a criminal conviction due to a trial error does not imply anything with respect to a defendant’s guilt or
innocence
, nor does it constitute a decision that the S ta te failed to prove its case. Id. at 15

. Instead, it merely reverses the judgment
, and the case stands as if the trial has not yet been held, dating back to the time the reversed order or judgment was entered. Though it may often be, as the State concedes, that without the suppressed evidence the State would have insufficient
admissibl e evidence to proceed to a new trial, this is not a question that appellate courts are best
suited to determine. The critical point at issue is whether the error on appeal was dispositive of
the case in its entirety or whether the error merely addressed o ne aspect of the case. See Idaho Gold Dredging Corp. v. Boise Payette Lumber Co. , 54 Idaho 270, 2 75

- 76 , 30 P.2d 1076, 1078 (1934)

. Billups argues that the Court’s intent to release him from both his conviction and the charges against him is present in our statement , “In sum, the totality of the circumstances does not demonstrate a probability or substantial chance that Billups was involved in any criminal activity. ” This statement was temporal: “the detective lacked probable cause to arrest Billups befor e transporting Billups to the police station for questioning.” Billups
, Docket No. 43571. After looking at the totality of the circumstances that existed at the time of Billups’ arrest, we concluded there was not probable cause to arrest him

. It does not follow that evidence did not surface later to establish probable cause that Billups committed the offense. Instead, our6 conclusion was limited to the precise issue on appeal in the subsequent appeal: w hether there

was p robable cause to arrest Billups

. O ver the years, we have concluded our opinions addressing only motions to suppress in various ways ; i.e.
, reversed, reversed and remanded, reversed with instructions, and reversed the
orde r, vacated the judg ment , and remanded. While it may be better to be consistent in our language , the different terms do not change the effect of our holding on the progression of the case. Though specific mandates may be requested of the appellate courts, we are not always in the best situation to determine the precise nat ure of the proceedings going forward after the remittitur is issued and the case remanded to the district court. The imperative, in determining
the directive from the appellate court, is to look at what the appeal is challenging. T he challenge
in Billups I was from a motion to suppress. Billups did not challenge his conviction on the basis
of insufficient evidence; rather
, he challenged t he suppression motion. Further, the relief requested by Billups in his reply brief from his underlying crimina l appeal was that this Court “vacate his conviction and sentence, reverse the order denying his motion to suppress, and remand his case for further proceedings.” Whereas that was the requested relief, we had two alternatives in our resolution of the previ ous appeal: (1) specifically grant the exact requested relief or (2) deny the specified relief with an explanation as to why we were providing alternative relief than that requested. As there was only one resolution requiring an explanation, and an expla nation was absent in our conclusion of the previous appeal, we simply granted the precise
relief which Billups requested. With the reversal of the ruling on the suppression motion, the case properly would be
returned to the district court in order to sor t out where it should proceed from there. If the prosecutor determines there is sufficient evidence to proceed, a new trial may be appropriate. If, upon suppressio n, insufficient evidence exists
, then the State would be compelled to dismiss the
case. Ho wever, an appellate court is in no position to make such a determination. Rather, the determination is properly left to the lower courts. The State is correct that an appellate opinion that reverses a judgment of conviction based
on an erroneous order den ying a motion is an implicit directive to grant the motion. Therefore, within our holding in Billups I was an implicit directive to the district court to enter an order of suppression of the evidence that was obtained as a result of Billups’ illegal arres t. The remittitur provides that the district court “forthwith comply with the directive of the Unpublished Opinion,7 if any action is required.” The directive of the u npublished o pinion was to reverse the judgment of conviction and enter an order suppress ing the evidence o btained as a result of Billups’ illegal arrest. That is the “action required.” However, there is nothing in our opinion which limited the
authori ty of the district court or stripped it of its ju risdiction over the case. The case was me rely restored to the posture it would have been before the error was made. Therefore, absent a disposal of the case in its entirety by the appellate court, reversal of the judgment di d not
foreclose a new trial.
III

. CONCLUSION
The absence of the term “remand” in an appellate opinion does not preclude further trial

court proceedings. If the appeal challenges a pretrial order , the case is then remanded to that pretrial stat us , leaving the State and the court to determine whether proceeding forward with a new trial is appropriate. The district court did not make a determin ation that there was
insufficient evidence, but merely dismissed the case for lack of jurisdiction. This was error. The district court did not lack jurisdiction. Accordingly, the dis trict court’s grant of the motion to
dismiss is reversed
, and the case is remanded for further proceedin gs consistent with this opinion. Chief Judge GRATTON and Judge HUSKEY CONCUR

.