1 IN THE SUPREME COURT OF THE STATE OF IDAHO Docket no. 37394 STATE OF IDAHO,

Plaintiff

- Respondent,

v.
DANIEL FRANCIS LUTE,

Defendant

- Appellant. ) ) ) ) ) ) ) ) ) ) ) Boise, April 2011 Term
2011 Opinion No. 50

Filed: April 20, 2011
Stephen W . Kenyon, Clerk

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Ronald J. Wilper, District Judge.
District court denial of ICR 35 motion to correct illegal sentence, reversed.
Daniel Francis Lute, Boi se, pro se appellant.
Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent.

__________________________________ BURDICK, Justice
This case arises on appeal from the district court’s denial of Daniel Lute’s Idah o Criminal
Rule 35 motion for correction of an illegal sentence. Lute argues that the grand jury that indicted
him was acting without authority as its commission had expired and
, therefore
, the district court
had no subject matter jurisdiction over his case and could not properly enter a Judgment of
conviction

. Lute further argues that the conviction underlying his sentence is for something that
is not a crime in Idaho and, as such, any sentence given for such conduct is necessarily illegal.
We reverse the district court’s denial of Lute’s I.C.R. 35 motion and remand with instructions to grant the motion and vacate Lute’s conviction, consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND On May 6, 1993, a grand jury indicted Lute for the offense of “Battery with the I ntent to Commit a Serious Felony” , specifically “ rape and/or kidnapping.” Following his arraignment, Lute entered into a plea agreement with the State, under which Lute agreed to plead guilty and2 the State agreed to amend the indictment to eliminate refer ence to “rape”, with the resulting charge reading “Battery with the Intent to Commit a Serious Felony, [to wit], Kidnapping, I.C. §
18

- 911.” The judge used handwritten strike throughs to amend the indictment , eliminating any reference to rape. A judgment of conviction was entered on August 17, 1993, sentencing Lute to five years fixed, to run concurrently with a sentence that Lute was already serving. The judgment did not specif y which serious felony Lute intended to commit when he committed battery

. On August 30, 2007, approximately nine years after the expiration of Lute’s se ntence, Lute filed an I.C.R. 35 motion for correction or reduction of sentence. Lute complained that the records of the Idaho Department of Corrections s howed that he had been conv icted of a sex
crime
, and requested that the judgment be amended to eliminate this confusion. The district court granted Lute’s request, 1 amending the judgment to read that Lute had been convicted for “Battery with Intent to Commit a Serious Felony, to wi t, Kidnapping, I.C. §§ 18

- 903, 18

- 911.” On January 29, 2008, Lute filed a second I.C.R. 35 motion, arguing that his sentence was invalid because the crime he pled guilty to was not proscribed in the Idaho Code. Lute also argued that the district court w as without subject matter jurisdiction or personal jurisdiction
when it entered the judgment, because the term of the grand jury had already expired at the time
he was indicted. The State acknowledged that the grand jury’s term had expired at the time of Lute’s indictment, but argued that the defect was not jurisdiction al and was waived by Lute when he entered into a Rule 11 plea agreement and pled guilty to the amended indictment. The district court denied Lute’s January 29, 2008, motion, finding that a validly entered guilty plea rendered the procedural defects in the gran d jury indictment harmless, and no jurisdictional defect existed. Lute appealed and the Court of Appeals affirmed

. Lute filed a petition for review, which this Court granted.
II . STA NDARD OF REVIEW When reviewing a case on petition for re view from the Court of Appeals this Court gives due consideration to the decision reached by the Court of Appeals, but directly reviews the
decision of the trial court. State v. Clements , 148 Idaho 82, 84, 218 P.3d 1143, 1145 (2009).
Idaho Criminal Rule 35 allows a trial court to correct a n illegal sentence at any time. Id

. As a general matter, it is a question of law as to whether a sentence is illegal or was imposed in an

1 It is unclear whether the district court amended the judgment on the basis of I.C.R. 35 or I.C.R. 36.3 illegal fashion, and th is Court exercises free review over questions of law

. Id

. Jurisdiction is likewise a question of law and is reviewed de novo

. State v. Barros , 131 Idaho 379, 381, 957 P.2d 1095, 1097 (1998).
II I. ANALYSIS
Th e crux of this appeal is jurisdiction. We m ust determine whether the district court had subject matter jurisdiction to consider the charges filed against Lute whe n the grand jury that indicted him was acting without legal authority. If we find that the district court had subject

m atter jurisdictio n over the case initially
, then t his Court must determine whether the district court had subject matter jurisdiction to grant the relief requested by Lute u nder his I.C.R. 35
motion where Lute attacked the conviction itself, not merely the sentence.
A. Lute’s appeal is not moot

. The State argues that Lute’s appeal is moot because Lute brought his I.C.R. 35 motion

over fourteen years after his five year sentence was entered , and that sentence was fully completed prior to his filing of the I.C.R. 35 motio n

. The State contends that I.C.R. 35 does not grant the district court authority to grant relief for a sentence that has been served in its entirety. Lute responds that it is well established under Idaho law that the completion of a sentence does
not mak e a felony conviction moot. “An issue becomes moot if it does not present a real and substantial controversy that is capable of being concluded through judicial decree of specific relief.” Koch v. Canyon Cnty

. , 145 Idaho 158, 163, 177 P.3d 372, 377 (2008) (quotation omitted)

. In Butler v. State , 129 Idaho 899, 901, 935 P.2d 162, 164 (1997), this Court held that “a felony conviction has collateral consequences and the fact that [ an appellant] has fully served his sentence does not moot [ that appellant’s] a ppeal.” Abrogated on other grounds by Rhoades v. State , 149 Idaho 130, __, 233 P.3d 61, 68 (2010). This is in line with the United States Supreme Court ’s statement that “a criminal case is moot only if it is shown that there is no possibility that any co llateral legal consequences will be imposed on the basis of the challenged conviction.” Sibron v. New York
, 392 U.S. 40, 57 (1968). The State has offered no such showing here.
The State contends that I.C.R. 35 grants courts the limited jurisdictional po wer to consider whether a sentence is illegal, and where the sentence itself has been completed a court is powerless to take any meaningful co rrective action under I.C.R. 35

— as the appellant will no t have his grievance addressed b y any modification of that sentence. However, where there is a4 jurisdictional defect, this court has authority to address that issue, even if it is not raised by the parties themselves. State v. Kavajecz , 139 Idaho 482, 483, 80 P.3d 1083 , 1084 (2003)

. Furthermore, “[w]here it is apparent from the record that the act the defendant was criminally convicted for is not a crime according to the laws of the state, this Court has the authority to
vacate the convictions sua sponte . . . .” Id . at 484, 80 P.3d at 1085.
“A bsent a statut e or rule extending its jurisdiction, the trial court’s jurisdiction to amend or set aside a judgment expires once the judgment becomes final, either by expiration of the time for appeal or affirmance of the judgment on appeal

. ” State v. Jakoski , 139 Idah o 352, 355, 79 P.3d 711, 714 (2003). However, where a court properly has jurisdiction to consider a case

— as it
does here to consider Lute’s I.C.R. 35 motion

— and it is apparent that there is an issue concerning subject matter jurisdiction or that a defenda nt was convicted for something that is not a crime, this Court must correct that error

. See K avajecz , 139 Idaho at 483

– 84, 80 P.3d at 1084

– 85.
B. The district court did not have jurisdiction to convict Lute whe n the grand jury that indicted him was acti ng without authority. Article I, section 8 of the Idaho Constitution states, inter alia , “[n]o person shall be held to answer for any felony or criminal offense of any grade, unless on presentment or indictment of a grand jury or on information of the publ ic prosecutor . . . .” Under what was previously I.C.R. 6(j), and is now I.C.R. 6.8, “no grand jury shall serve more than six (6) months unless specifically ordered by the court which summoned the grand jury.” “An indictment issued by a grand jury whose term is up and has not been validly extended is void . . . .” United States v.
Daniels , 902 F.2d 1238, 1240 (7th Cir. 1990). As this Court stated in State v. Urrabazo : “Subject matter jurisdiction is the power to determine cases over a general type or cl ass of dispute.” Bach v. Miller, 144 Idaho 142, 145, 158 P.3d 305, 308 (2007)

. The source of this power comes from Article V, Section 20, of the Idaho Constitution , which provides that district courts “shall have original jurisdiction in all cases, both at law and in equity, and such appellate jurisdiction as may be conferred by law.” This issue is so fundamental to the propriety of a court's actions, that subject matter jurisdiction can never be waived or consented to, and a court has a sua sponte duty to ensure that it has subject matter jurisdiction over a

case. See Idaho R. Civ. P. 12(g)(4)

. Furthermore, judgments and orders made without subject matter jurisdiction are void and “are subject to collateral attack, and are not entitled to recognition i n other states under the full faith and credit clause of the United States Constitution.” Sierra Life Ins. Co. v. Granata, 99 Idaho 6 24, 626

– 27, 586 P.2d 1068, 1070

– 71 (1978)

. This Court exercises free review over questions of jurisdiction.5 150 Idaho 158 , __, 244 P.3d 1244, 1248

– 49 (2010) (internal citation s omitted)

. “The information, indictment, or complaint alleging an offense was committed within the State of Idaho confers subject matter jurisdiction upon the court.” State v. Rogers , 140 Idaho 223, 228, 91 P.3d 1127, 1132 (2004).
In State v. Dalling , a grand jury was convened on October 13, 1992, and that grand jury lost its legal status as a body empowered to act as a grand jury six months later, on April 13,
1993 , in accordance with I.C.R. 6.8

. 12 8 Idaho 203, 204

– 05 , 911 P.2d 1115, 1116

– 17 (1996). Nevertheless, the grand jury continued to meet after April 13, and was not officially discharged
until May 7, 1993. Id . at 204, 911 P.2d at 1116. On May 6, 1993

— approximately three weeks
af

ter its lawf ul term had expired

— the grand jury met and returned an indictment against Dalling.
Id . Dalling moved for the indictment to be dismissed on the basis that the grand jury had no authority to act and, accordingly, the district court never properly had the c ase before it. Id . The district court granted Dalling’s motion to dismiss, and on appeal this Court affirmed, finding that where the grand jury returned an indictment after its term had expired, that indictment was
invalid. Id . at 205, 911 P.2d at 1117 (“Upon the expiration of its term under I.C.R. 6(j), the grand jury no longer had the authority to meet and return indictments.”). Thus in Dalling , this Court recognized that where a grand jury does not have a legally recognized existence, any
indictments that a grand jury returns are invalid. The expired grand jury that entered an invalid indictment against Dalling was the same expired grand jury that entered an invalid indictment against Lute. In fact
, the indictments against Dalling and Lute were ent ered on the same day. The State conceded below that the grand jury in this case did not have authority to indict Lute. On appeal, the State devotes much of its argument to the issue of a “defective indictment” and the effect of a guilty plea on “defects” in grand jury proceedings . However, there was no “defective” indictment in this case; rather there was no indictment under the law. Likewise, the group of citizens that issued the purported indictment was not a grand jury. A s such, there was no de fect in the grand jury process; rather there was no grand jury process at all

. As a valid indictment was never entered against Lute , the district court never had subject

matter jurisdiction over Lute’s case under Article I, section 8 of the Idaho Constitution. See Rogers , 140 Idaho at 228, 91 P.3d at 1132. Therefore, we reverse the district court’s denial of
Lute’s I.C.R. 35 motion and remand with instructions to grant Lute’s motion and vacate Lute’s6 conviction on the basis that the district court never proper ly had jurisdiction over the case. Having reversed on this issue, we decline to consider any other arguments raised by Lute.
IV . CONCLUSION
We reverse the district court’s denial of Lute’s I.C.R. 35 motion, and remand with
instructions to vacate Lute’s c onviction on the basis that no valid indictment or infor mation was
returned in the case and
, as such
, the district court never properl y had jurisdiction to hear it. Chief Justice EISMANN and Justices J. JONES, W. JONES and HORTON, CONCUR.