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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 39165

STATE OF IDAHO,

Plaintiff-Respondent,

v.

KIM J. DAY,

Defendant-Appellant.

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2013 Opinion No. 29

Filed: May 24, 2013

Stephen W. Kenyon, Clerk

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

Bonneville County. Hon. Joel E. Tingey, District Judge. 

Order revoking probation and requiring execution of unified fourteen-year

sentence, with four years determinate, for grand theft, vacated and case remanded.

Sara B. Thomas, State Appellate Public Defender; Shawn F. Wilkerson, Deputy 

Appellate Public Defender, Boise, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy 

Attorney General, Boise, for respondent. 

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GUTIERREZ, Chief Judge

Kim J. Day pled guilty to grand theft. Idaho Code §§ 18-2403, 18-2407(1)(b). The 

district court imposed a unified fourteen-year sentence, with four years determinate, but

suspended the sentence and placed Day on probation. Subsequently, Day violated his probation 

by incurring additional convictions for lewd conduct with a minor under sixteen and being a 

persistent violator. The State filed a report of probation violation. The district court found Day

was in violation of his probation, stating the lewd conduct conviction was “binding” on the court,

and consequently revoked probation and ordered execution of the underlying sentence. The 

court noted, however, that it was aware Day was appealing the lewd conduct conviction and that 

the court would “reconsider” its decision to revoke probation in the event the conviction was 

overturned on appeal. Day expressed concern that the district court would no longer have 

jurisdiction to do so after the time for filing an Idaho Criminal Rule 35 motion passed. The 
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district court replied: “I don’t really know the answer to that. . . . [I]t may be worthwhile to 

appeal this . . . .” Day appeals, contending the district court abused its discretion in revoking 

probation and requiring execution of the underlying sentence without reduction. 

Day also challenges the Idaho Supreme Court’s order denying in part his motion to 

augment the record on appeal. While this appeal was pending, Day filed a motion to augment 

the record on appeal with additional transcripts. The Idaho Supreme Court issued an order 

granting in part and denying in part Day’s motion. Specifically, the Court denied Day’s motion 

as to his request to augment the record on appeal with the transcript of the original sentencing 

hearing. 

Also while this appeal was pending, Day’s appeal from his judgment of conviction for 

lewd conduct with a minor came before this Court. We reversed the conviction on the basis that 

there existed a fatal variance between the charging document and the jury instructions that

amounted to fundamental error. State v. Day, ___ Idaho ___, ___ P.3d ___ (Ct. App. 2013). 

Because it is dispositive, we only address Day’s claim that the district court erred in 

revoking Day’s probation. A district court’s decision to revoke probation will not be overturned 

on appeal absent a showing that the court abused its discretion. State v. Sanchez, 149 Idaho 102, 

105, 233 P.3d 33, 36 (2009). When a trial court’s discretionary decision is reviewed on appeal, 

the appellate court conducts a multi-tiered inquiry to determine: (1) whether the lower court 

correctly perceived the issue as one of discretion; (2) whether the lower court acted within the 

boundaries of such discretion and consistently with any legal standards applicable to the specific 

choices before it; and (3) whether the lower court reached its decision by an exercise of reason. 

State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989). 

Day contends the district court abused its discretion “because that decision was based, in 

large part, on its erroneous assumption that it would have continuing jurisdiction over Mr. Day, 

and therefore, the discretion to reinstate Mr. Day’s probation in the event Mr. Day’s conviction 

for lewd conduct is overturned on appeal.” Day is correct that the district court would not 

possess residual jurisdiction to alter the sentence or to reinstate probation, absent a Rule 35 

motion, which must be filed within fourteen days after the order revoking probation. I.C.R. 35; 

State v. Fleshman, 144 Idaho 772, 774, 171 P.3d 263, 265 (Ct. App. 2007). Thus, the district 

court abused its discretion in revoking probation on this basis because this reasoning was not 

consistent with the applicable legal standards. 
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We also note that, even absent an abuse of discretion in this manner, where a conviction 

forming the basis of a revocation of probation is set aside, it is proper that a case be remanded 

back to the trial court for redetermination of the status of a defendant’s probation in light of the 

reversal of his conviction. This is so because a court may not revoke probation without a finding 

that a probationer violated the terms of probation. State v. Blake, 133 Idaho 237, 243, 985 P.2d 

117, 123 (1999) (remanding for reconsideration of probation revocation where probation had 

been revoked based on the defendant’s recent convictions and a missed meeting with his 

probation officer, but those recent convictions were set aside by the appellate court).1 The 

district court’s order revoking probation is vacated and this case is remanded for a new hearing.

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Judge LANSING and Judge MELANSON CONCUR.

 

1 We note the fact that Day’s underlying conviction was vacated does not mean the district 

court cannot still revoke probation upon reconsideration of the issue. There is no requirement 

that a judgment of conviction be a prerequisite to finding a probation violation when the alleged 

violation is the commission of a crime. State v. Wilson, 127 Idaho 506, 510-11, 903 P.2d 95, 

99-100 (Ct. App. 1995). A probation violation, unlike a criminal conviction, need not be proven 

beyond a reasonable doubt. State v. Dempsey, 146 Idaho 327, 329, 193 P.3d 874, 876 (Ct. App. 

2008). These considerations are especially relevant where, as here, a conviction is vacated due 

to a procedural irregularity rather than insufficiency of evidence. 

2 Since we vacate the order revoking probation and remand for further proceedings, we 

need not address Day’s contentions that the Supreme Court erred in denying his motion to 

augment the record and that the sentence imposed upon revocation of probation was excessive.