1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 48287

STATE OF IDAHO ,
Plaintiff

- Respondent ,

v.

ELEASAR PEDROSA FRAKES ,
Defendant

- Appellant

. ) ) ) ) ) ) ) ) ) ) Filed: August 4, 2021
Melanie Gagnepain, Clerk

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Appeal from the District Court of the Third Judicial District, State of Idaho, Canyon County. Hon. Thomas W. Whitney , District Judge.
Order denying motion for credit for time served, affirmed

. Eric D. Fredericksen, State Appellate Public Defender; Jenny C. Swinford
, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney Gener al; Kale D. Gans , Deputy Attorney General, Boise, for respondent.

________________________________________________ HUSKEY, Chief Judge Eleasar Pedrosa Frakes appeals from the district court’s denial of his Idaho Criminal
Rule 35 motion seeking credit for time served . Frakes asserts the district court erred by failing to grant him credit for time served while he was in custody for a separate offense and had not been
served with the bench warrant in this case

. Because t he district court correctly concluded it did
not have discretion to award Frakes credit for the time he was incarcerated prior to the se rvice of the bench warrant, we affirm the district court’s order denying Frakes’ motion for time served.
I.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2017, Frakes pleaded guilty to possession of methamphetamine in Canyon County

. The district court imposed a unified term of incarceration of five years, with two years determinate, and placed Frakes on probation. In September 2017, the State filed a petition for2 probation violation, alleging Frakes violated multiple terms and conditions of his probation. Frakes admitted to violating the terms of his probation
, and the district court set a disposition hearing for January 8, 2018. After the disposition hearing was continued , Fr akes failed to appear at the hearing
, and the district court issued a bench warrant for his arrest on January 29, 2018

. On July 21, 2018, Frakes was arrested for committing a crime in Ada County. Frakes was incarcerated in Ada County from July 21, 2018
, to May 6, 2019. Frakes was sentenced in the Ada County case on May 6, 2019
, and the court retai ned jurisdiction. On February 3, 2020, following the period of retained jurisdiction, the co urt in Ada County placed Frakes on probation. That same day, Frakes was served with the outstanding bench warrant for his Canyon County probation violation and was transferred to Cany on County. On February 12, 2020, the district court in Canyon County r einstated Frakes ’ probation, granting Frakes ninety

- four days of credit for time served, including eighty

- four days served prior to January 29, 2018
, and ten days served from February 3, 2020 , to February 12, 2020

. Fr akes filed a Rule 35 motion seeking additional credit for the 561 days he was incarcerated in Ada County prior to being served with the b ench warrant. Frakes argued: It was indisputably unjust for the Ada County Sheriff to choose not to serve the January 29, 2018 Bench Warrant issued in th is matter upon Defendant once he came into the Sheriff’s custody on July 21, 2018. Additionally, it is impossible to argue that the Ada County Sheriff did not [k] now about the Bench Warrant nor that they could not have discovered the existence of the Benc h Warrant. Reasona bly speaking, they could have

-- and should have

-- served the Bench Warrant in this matter upon Defendant on July 22, 2018.

. . . . Had the Bench Warra nt been served upon Defendant on July 22, 2018, then from that date until February 12, 2 020, Defen dant would have been entitled to 571 days credit for time served instead of the 10 days credit Defendant was given. Adding to that total the 8 4 days Defendant served prior to January 29, 2018, then Defendant would be entitled to a total amount o f 655 days credit for time served.
The district court concluded it could not grant credit for time predating the service of the bench warrant and denied Frakes’ motion, stating: [ T ] he motion is denied. And it’s denied because I don’t think I have the aut hority to give him that credit in this case because the warrant was not, in fact, served. I can’t make the Ada County Sheriff’s Office serve the warrant on him. You know, even if you had filed a motion right away saying, hey, he’s not getting credit over here, I just don’t believe I have the authority to make them do that. And in terms of

--- you know, like the title of the motion is Motion to Correct Credit for Time Served pursuant to Idaho Criminal Rule 35(c). You have3 a good argument, [counsel], but I just don’t think I have the authority under Rule 35(c) to do what you’re asking. Frakes timely appeals.
II.
STANDARD OF REVIEW Whether a sentencing court has properly awarded credit for time served is a question of law subject to free review. State v. Taylor , 160 Idaho 381, 384

- 85, 373 P.3d 699, 702

- 03 (2016)

. We defer to the trial court’ s findings of fact unless those findings are unsupported by substantial and competent evidence in the record and are therefore clearly erroneous. State v. Brown , 163 Idaho 941, 943, 422 P.3d 1147, 1149 (Ct. App. 2018)

. III.
ANALYSIS
Mindful of the language of Idaho Code § 19

- 2603, Frakes argues the district court erred by failing to grant him credit for time served while he was in custody for the Ada County offense

a nd could have been served with the bench warrant in this case

. In response, the State argues the
district court
, bound by the statute , correctly concluded it did not have authority to grant credit
for time serv ed prior to the service of the bench warrant

. Idaho Code § 19

- 2603 governs the calculation of credit for time served when a sentence is imposed after a probation revocation . I daho C ode § 19

- 2603 provides in relevant part:
The defendant shall receive credit for time served from the date of servic e of a bench warrant issued by the court after a finding of probable cause to believe the defendant has violated a condition of probation, for any time served following an arrest of the defendant pursuant to section 20

- 227, Idaho Code, and for any time

ser ved as a condition of probation under the withheld judgment or suspended sentence. ( E mphasis added

. )
Idaho Code § 19

- 2603 does not provide courts with the discretion to award credit for time served prior to the date the defendant is served with a bench w arrant. Frakes does not cite to any controlling authority in support of his argument that the district court had the authority to award
Frakes c redit for time served prior to being served with the bench warrant. Rather, Frakes asserts that “mindful of th e relevant statute’s requirement of service of the warrant
, ” he is entitled to credit for time served for his period of incarceration when the Ada County Sheriff’s Office could have, but did not, serve him with the outstanding January 2 018 warrant. Frakes further asserts4 that “as a matter of fairness,” law enforcement’s failure to serve him with the outstanding bench warrant contravenes the purpose of the credit for time served statu t es. In support of his fairness argument, Frakes cites to a dissent from State v. Barrett , 163 Idaho 449, 454

- 55 , 414 P.3d 1188, 1193

- 94 (2018) , which disfavored the majority’s conclusion
that a defendant was not entitled to credit for time served prior to bein g served with a bench

warrant. The dissent in Barrett provides no authority or support for Frakes’ claim. Moreover, Frakes’ claim is inconsistent with the plain language of I.C. § 19

- 2603

. Under I.C. § 19

- 2603, the district court did not have authority to award Frakes credit for the time he was in custody for a separate offense prior t o being served with the bench warrant in this case

. Accordingly, Frakes
has failed to show that the district court erred by not granting Frakes additional credit for time he was incarcerated prior to being served with the bench warrant. IV. CONCLUSION
The district court did not have authority to award Frakes credit for time served prior to
the date Frakes wa s served with the bench warrant; thus, the district court did not err in denying
the motion for cr edit for time served. Accordingly, we affirm the district court’s denial of
Frakes’ motion for credit for time served. Judge GRATTON and Judge LORELLO CONCUR

.