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IN THE SUPREME COURT OF THE STATE OF IDAHO 

Docket no. 37394

STATE OF IDAHO,

 Plaintiff-Respondent,

v.

DANIEL FRANCIS LUTE,

 Defendant-Appellant.

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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, Boise, pro se appellant.

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

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BURDICK, Justice

This case arises on appeal from the district court’s denial of Daniel Lute’s Idaho 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 Intent 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 and 
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the State agreed to amend the indictment to eliminate reference 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 specify which serious felony Lute intended to commit when he committed 

battery.

On August 30, 2007, approximately nine years after the expiration of Lute’s sentence, 

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 showed that he had been convicted 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 wit, 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 was 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 jurisdictional 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 grand 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. STANDARD OF REVIEW

When reviewing a case on petition for review 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 an 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.
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illegal fashion, and this 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).

III. ANALYSIS

The crux of this appeal is jurisdiction. We must determine whether the district court had

subject matter jurisdiction to consider the charges filed against Lute when the grand jury that 

indicted him was acting without legal authority. If we find that the district court had subject 

matter jurisdiction over the case initially, then this Court must determine whether the district 

court had subject matter jurisdiction to grant the relief requested by Lute under 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 motion. 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 make 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] appeal.” 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 collateral 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 power to 

consider whether a sentence is illegal, and where the sentence itself has been completed a court 

is powerless to take any meaningful corrective action under I.C.R. 35—as the appellant will not 

have his grievance addressed by any modification of that sentence. However, where there is a 
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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. 

“Absent a statute 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 Idaho 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 defendant was convicted for something that is not 

a crime, this Court must correct that error. See Kavajecz, 139 Idaho at 483–84, 80 P.3d at 1084–

85. 

B. The district court did not have jurisdiction to convict Lute when the grand jury that 

indicted him was acting 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 public 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 class 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 in other states under the full faith and credit 

clause of the United States Constitution.” Sierra Life Ins. Co. v. Granata, 99 

Idaho 624, 626–27, 586 P.2d 1068, 1070–71 (1978). This Court exercises free 

review over questions of jurisdiction.
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150 Idaho 158, __, 244 P.3d 1244, 1248–49 (2010) (internal citations 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. 128 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 

after its lawful 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 case 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 entered 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. As such, there was no defect 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’s 
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conviction on the basis that the district court never properly 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 conviction on the basis that no valid indictment or information was 

returned in the case and, as such, the district court never properly had jurisdiction to hear it.

Chief Justice EISMANN and Justices J. JONES, W. JONES and HORTON, CONCUR.