1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 46839

STATE OF IDAHO

,

Plaintiff

- Respondent

,

v.

NATHAN NICHOLAS HELBURN

,

Defendant

- Appellant

. ) ) ) ) ) ) ) ) ) ) Filed: November 6, 2019

Karel A. Lehrman, Clerk

THIS IS AN UNPUBLISHED

OPINION AND SHALL NOT

BE CITED AS AUTHORITY

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

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

Order denying motion for new trial, affirmed

.

Nathan N. Helburn, Boise, pro se appellant.

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

________________________________________________

GRATTON, Chief Judge

Nathan Nicholas Helburn appeals from the district court’s order denying his motion for

new trial. In his brief

, Helburn does not assert how the district court erred below

, but argues

there is newly discovered evi dence that requires a new trial

. For the reasons set forth below

, we

affirm.

I.

FACTUAL AND PROCEDURAL BACKGROUND

In 2010

, Helburn was charged with first degree murder with a deadly weapon. Pursuant

to a plea agreement

, Helburn pled guilty to second degree murder. He was sentenced to a unified

term of life imprisonment with ten years determinate. Helburn appealed

, arguing his sentence i s

excessive. T his C ourt affirmed his conviction and sentence in 2011. State v. Helburn

, Docket

No. 38597 ( Ct. App. Nov

. 15, 2011) (unpublished)

. T he Idaho Supreme Court denied Helburn’s

petition for review and the remittitur was entered.2 On February 7, 2019

, Helburn fi led a motion for new trial, claiming there was newly

discovered evidence; namely

, two witnesses that would testify the victim hid Helburn’s

psychiatric medications from him

. The district court denied Helburn’s motion under Idaho

Criminal Rule 34, finding it lacked jurisdiction to consider the matter because it was untimely.

Helburn timely appeals.

II.

ANALYSIS

Helburn argues he is entitled to a new trial based on newly discovered evidence but fails

to assign error to the district court’ s decision below

. The State argues the district court did not

err in determining it lacked jur isdiction to consider the motion

, and this Court similarly lacks

jurisdiction to consider the merits of Helburn’s argument.

A question of jurisdiction is fundamental; it cannot b e ignored when brought to our

attention and should be addressed prior to consi dering the merits of an appeal. State v. Kavajecz

, 139 Idaho 482, 483, 80 P.3d 1083, 1084 (2003)

. Issues about the district court’ s jurisdiction are

issues of law, over which t he Cour t exercises independent review. State v. Rogers , 140 Idaho

223, 227, 91 P.3d 1127, 1131 (2004).

The district court held that I

. C

. R

. 34 required Helburn’s motion to be filed within two

years of the final judgment

. 1 Helburn ’s failure to timely fil e resulted in the court’s inability to

hear the motion. Rule 34 (b)(1) states:

Newly Discovered Evidence. Any mot ion for a new trial grounded on newly discovered evidence must be filed within two years after final judgment, if an appeal is pending, the c ourt may not grant a motion for a new trial until the appellate court remands the case.

The district court noted that Helburn’ s motion was not filed within the limitations period, and he

did not request an extension

. 2 It held, “t his court lacks jurisdiction to hear the motion. ” W e

1 For the purposes of this rule, a judgment becomes “final” not when the judgment of conviction is entered by the district court, but when the appeal or time for appeal has ended. See

State v. Parrott

, 138 Idaho 40, 42, 57 P.3d 509, 511 (Ct

. App. 2002).

2 The time for filing a motion for a new trial based upon newly discovered evidence may not be extended unless an application for extension of time to file the motion is made within the statutory time l imit. If such application is not made with in the statutory time limit, the district court has no jurisdiction to consider a motion for a new trial filed outside the specified time period.

Parrott , 138 Idaho at 42, 57 P.3d at 511.3 agree that the district court did not have the jurisdiction to consider the matter. A judgment

becomes final when the appeal or time for appeal has ended. Helburn’s two

- year limit began to

run after the remittitur wa s entered in November of 2011 , giving him until 2013 to timely file. 3

Helburn’s motion for new trial was filed in January 2019, over five years beyond the two

- year

time limit imposed by Rule 34. Helburn makes no supported argument to the contrary. See S tate

v. Zichko , 129 Idaho 259, 263, 923 P.2d 966, 970 (1996) ( holding that w hen issues on appeal are

not supported by propositions of law, authority, or argument, they will not be considered).

III.

CONCLUSION

Helburn’s motion for new trial was untimely under Idaho Criminal Rule 34. Therefore,

the district court correctly determin ed it did not have jurisdiction to hear the motion.

Accordingly, we affirm the district court’ s order denying Helburn’s motion.

Judge LORELLO and Judge BRAILSFORD CONCUR

.

3 The district court h eld: “Helburn’s motion comes nearly seven (7) years past the limitations period

. . . . ” It appears the district court calculated the limitations period to run from the judgment of conviction in 2010, which would have given him until 2012 to file a motion for

a new trial, making Helburn roughly seven years past the expiration of his window to timely file. We assume the remittitur was the “final judgment ” for purposes of the rule, which was entered on November 29, 2011, giving him until November 2013 t o fi le. Therefore, Helburn is five years past the expiration of his window to timely file.