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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 45199

STATE OF IDAHO,

Plaintiff-Appellant,

v.

RANDALL JEROME BILLUPS,

Defendant-Respondent.

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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 remanded.

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. 

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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’ opinion 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. The 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 

testimony of Billups’ alleged co-conspirator, and thirty-four exhibits, several of which were 
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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 statements and text messages obtained from his phone while he was in 

custody. Billups did not challenge any other evidence admitted at trial. In the previous appeal, 

this Court solely reviewed the district court’s order regarding Billups’ post-arrest statements and 

text messages after he was in custody. State v. Billups, Docket No. 43571 (Ct. 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, stating that the 

district court must “forthwith comply with the directive of the Unpublished Opinion, if any 

action is required.” 

At a status conference following the appeal, the State requested the case be set for a new 

trial. Billups objected and moved to dismiss, which 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 discharge the 

defendant.” The State filed a motion to reconsider, arguing that proper application of Idaho 

Appellate Rule 38(c) should have resulted in the district court vacating the judgment of 

conviction, entering an order to suppress the pertinent evidence, and 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 the case and agreed with Billups that dismissal was proper because 

the Court of Appeals did not “reverse and remand,” rather, it merely “reversed.” The State 

timely appeals. 

II.

ANALYSIS

The State argues the district court ignored clear precedent in dismissing the charge and 

discharging Billups. The State reasons that nothing in the Billups I opinion precluded the case 
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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 

suppression, 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 

judgment 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 in 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 clearly 

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 jurisdiction 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) or for entry of a final judgment in accordance with the instructions or

the decision of the appellate or superior court.” WEBSTER’S THIRD INTERNATIONAL DICTIONARY

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 effect. 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. Idaho Appellate Rule 38(c) provides:

When the opinion filed has become 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 appeal 
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and to the presiding district judge or chairman 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.

(Emphasis 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 with 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 an 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 and the evidence 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 temporal 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 before this Court. 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 were intended to preclude retrial. Rather, the holding supported a reversal 

of the district court’s order denying suppression of the evidence obtained as a result of Billups’

illegal arrest and nothing more. Additionally, Billups’ reliance on the strict reading of I.A.R. 38 

is not aligned with the Idaho Supreme Court’s conclusion that the rule is merely the codification 
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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 remand 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 made in the pretrial stages does not address whether 

the evidence was insufficient to sustain a guilty verdict. Burks v. United States, 437 U.S. 1, 8 

(1978). It solely addresses the issue of whether the evidence should have been admitted in the 

first instance. 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 State 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 

admissible 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 one aspect of the case. See Idaho 

Gold Dredging Corp. v. Boise Payette Lumber Co., 54 Idaho 270, 275-76, 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 

before 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, our 
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conclusion was limited to the precise issue on appeal in the subsequent appeal: whether there 

was probable cause to arrest Billups.

Over 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 

order, vacated the judgment, 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 nature 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. The 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 the suppression motion. Further, the relief 

requested by Billups in his reply brief from his underlying criminal 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 previous 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 

explanation 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 sort 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 suppression, insufficient evidence exists, then the State would be compelled to dismiss the 

case. However, 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 denying 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 arrest. The remittitur 

provides that the district court “forthwith comply with the directive of the Unpublished Opinion, 
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if any action is required.” The directive of the unpublished opinion was to reverse the judgment 

of conviction and enter an order suppressing the evidence obtained as a result of Billups’ illegal 

arrest. That is the “action required.” However, there is nothing in our opinion which limited the 

authority of the district court or stripped it of its jurisdiction over the case. The case was merely 

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 did 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 status, leaving the State and the court to determine whether proceeding forward with a 

new trial is appropriate. The district court did not make a determination 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 district court’s grant of the motion to 

dismiss is reversed, and the case is remanded for further proceedings consistent with this 

opinion.

Chief Judge GRATTON and Judge HUSKEY CONCUR.