1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 38995

MICHAEL SHANE BYINGTON , Petitioner-Appellant ,

v.

STATE OF IDAHO , Respondent

. ) ) ) ) ) ) ) ) ) ) 2012 Unpublished Opinion No. 721

Filed: November 15, 2012
Stephen W. Kenyon, Clerk

THIS I S AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Appeal from the District Court of the Fou rth Judicial District, State of Idaho, Ada County. Hon. Ronald J. Wilper , District Judge.

Order deny ing pe tition for post

- conviction relief, reversed ; case remanded

. Sara B. Thomas, State Appellate Public Defender; Spencer J. Hahn, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Nicole L. Schafer, Deputy Attorney General, Boise, for respondent.

________________________________________________ GRATTON, Chief Judge Michael Shane Byington appeals from the district court’s order denying his petition for
post

- conviction relief following an evidentiary hearing. We reverse.
I.
FACTUAL AND PROCEDUR AL BACKGROUND Byington was convicted of aggravated assault followi ng a jury trial. He received a
unified five

- year term with two years determinate, which was suspended in favor of a five

- year term of probation. Byington filed a motion for a new trial based on newly discovered evidence, which was denied by the district court. Byington appealed the denial of that motion an d this Court upheld the district court

. See State v. Byington , Docket No. 35697 (Ct. App. Sept. 18, 2009) (unpublished)

. Byington then filed a petition for post

- conviction relief alleging numerous claims of
ineffective assistance of counsel. At the evid entiary hearing on his petition, Byington sought to2 introduce evidence concerning trial counsel’s failure to file a motion to suppress evidence

-- an issue not raised in his petition for post

- conviction relief. The State objected on the basis that this
clai m was not p led and, therefore, waived

. Byington was allowed to present evidence on the

matter

. A fter hearing argument
, the district court requested additional briefing on this new claim . Byington filed both additional briefing on the issue and a supplem ental 1 petition for post

conviction relief. The State
, in turn
, filed a memorandum in support of its objection

. The district

court then denied Byington’s petition and held that the new claim had been waived

. Byington
time ly appealed.
II.
DISCUSSION
The sole issue Byington raises on appeal is whether the district court erred by holding
that his ineffective assistance of counsel claim was waived

. 2 As noted, Byington’s initial petition for post

- conviction relief contained numerous claims of ineffective assistance, but did not contain an allegation that his trial counsel provided ineffective assistance for failing to file a motion to suppress evidence

. The State argued that language in Stuart v. State , 118 Idaho 932,
933

- 34, 801 P.3d 1283, 12 8 4

- 8 5 (1990 ) suggested that a claim which should have been known at the time of filing of the initial petition is waived if not raised therein. The district court agreed
with the State finding: The Petitioner attempted to and in fact was allowed by the Court to introduce evidence of an alleged illegal custodial interrogation and subsequent search. These matters were not raised in the original Petition for Post Conviction Relief. Therefore, the Court now rules that those claims were waived and will not be considered.

The district court’s use of the term “ waived ” is indicative of its reliance on Idaho Code § 19

- 4908. That section provides:

1 Under Idaho Rule of Civil Procedure 15(d) a supplemental pleading is proper when “transactions or occurrences or events [] have happened since the date of the pleading sought to be supplemented.” Here, the issue Byington wished to include did not occur after the original petition was filed, it was merely discovered by counsel after the initial petition was filed. Counsel should have filed a motion to amend the petition.

2 The other issues in Byington’s original petition for post

- conviction relief are thus waived. See Monahan v. State
, 145 Idaho 872 , 874 n.1, 187 P.3d 1247 , 1249 n.1 (Ct. App. 2008).3 All grounds for relief available to an applicant unde r this act must be raised in his original, supplemental or amended application

. Any ground finally adjudicated or not so raised, or knowingly, voluntarily and intelligently waived in the proceeding that resulted in the conviction or sentence or in any oth er proceeding the applicant has taken to secure relief may not be the basis for a subsequent application, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original, supplemen tal, or amended application.
(emphasis added).
The district court’s reliance on I.C. § 19

- 4908 was in error

. The language in Stuart relates to a successive petition. If Byington had filed a successive petition, then the district court

c ould have correctly rejected the petition on the basis that it was waived pursuant to I.C. § 19

- 4908

. Instead
, Byington was attempting to add a claim to his initial petition. Therefore, the waiver provisions of I.C. § 19

- 4908 do not apply and his effort to amend his petition was instead governed by I.R.C.P. 15(a) and (b). The State argues on appeal that Byington failed to properly move to amend, the district court could properly deny any motion to amend, and the issue was not tried by consent of the part ies. However, these assertions were not the basis of the district court’s refusal to consider the issue. Therefore, we do not address them on appeal. On remand
, the district court should address whether Byington is allowed to amend his petition

. 3

III.
C ONCLUSION
T he district court erred by holding that Byington’s ineffective assistance of counsel claim
was waived because it was not included in his original petition. As such, we reverse the district court’s order denying Byington’s petition for post

- con viction relief and the case is remanded for further proceedings. Judge LANSING and Judge GUTIERREZ CONCUR.

3 We express no opinion as to whether or not the district court should allow Byington to amend his petition on remand.