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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 40840

STATE OF IDAHO,

Plaintiff-Respondent,

v.

JAY MORRIS BURNET,

Defendant-Appellant.

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2014 Unpublished Opinion No. 661

Filed: August 13, 2014

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED 

OPINION AND SHALL NOT 

BE CITED AS AUTHORITY

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

Kootenai County. Hon. John T. Mitchell, District Judge. 

Order revoking probation and executing reduced unified sentence of five years, 

with four years determinate, affirmed.

Sara B. Thomas, State Appellate Public Defender; Brian R. Dickson, Deputy 

Appellate Public Defender, Boise, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; Nicole L. Schafer, Deputy 

Attorney General, Boise, for respondent. 

________________________________________________

Before GUTIERREZ, Chief Judge; LANSING, Judge;

and GRATTON, Judge

PER CURIAM

Jay Morris Burnet pled guilty to eluding a police officer, Idaho Code § 49-1404(2). The 

district court sentenced Burnet to a determinate five-year term, and retained jurisdiction. Upon 

completion of a period of retained jurisdiction, the district court suspended Burnet’s sentence and 

placed him on probation. Burnet later incurred a new criminal charge, and the district court 

revoked Burnet’s probation and executed a reduced sentence of a unified term of five years, with 

four years determinate.

After filing this appeal, and before assignment to this Court, Burnet filed a motion to 

augment the record with additional transcripts. The State filed an objection, and the Idaho 

Supreme Court denied the motion. Burnet renewed his motion, which was again denied.
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On appeal Burnet argues that the Idaho Supreme Court denied him due process, equal 

protection, and effective assistance of counsel by denying his motions to augment the record. 

Burnet also contends that the district court abused its discretion by revoking probation and 

failing to further reduce his sentence. 

A. Denial of Motions to Augment Record 

Burnet asks this Court to hold that the Idaho Supreme Court deprived him of due process, 

equal protection, and effective assistance of counsel when it denied his motion to augment the 

record. We do not, however, have the authority to review and, in effect, reverse an Idaho 

Supreme Court decision on a motion made prior to assignment of the case to this Court on the 

ground that the Supreme Court decision was contrary to the state or federal constitutions or other 

law. See State v. Morgan, 153 Idaho 618, 620, 288 P.3d 835, 837 (Ct. App. 2012). Such an 

undertaking would be tantamount to the Court of Appeals entertaining an appeal from an Idaho 

Supreme Court decision and is plainly beyond the purview of this Court. Id. If a motion is

renewed by the movant and new information or a new or expanded basis for the motion is 

presented to this Court that was not presented to the Supreme Court, we deem it within the 

authority of this Court to evaluate and rule on the renewed motion in the exercise of our 

responsibility to address all aspects of an appeal from the time of assignment to this Court. Id. 

Such may occur if the appellant’s or respondent’s briefs have refined, clarified, or expanded 

issues on appeal in such a way as to demonstrate the need for additional records or transcripts, or 

where new evidence is presented to support a renewed motion. Id. 

Burnet has not filed with this Court a renewed motion to augment the record or presented 

to this Court in his briefing any significant new facts or a new justification for augmentation 

beyond that already advanced in his motion to the Supreme Court. In essence, Burnet asks us to 

determine that the Idaho Supreme Court violated constitutional law by denying his motions. 

We adhere to our conclusion in Morgan that reviewing the denial of a motion to augment 

the record by the Supreme Court is beyond the scope of our authority. If a party files a renewed 

motion after the case assignment to this Court and presents new information or justification for 

the motion, we have the authority to rule on the motion. Burnet had an opportunity to present his

constitutional arguments to the Supreme Court and that Court denied his motions. He has no 

right to appeal that denial to the Idaho Court of Appeals, and we have no authority to consider 

such an appeal. 
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B. Revocation of Probation and Review of Sentence

It is within the trial court’s discretion to revoke probation if any of the terms and 

conditions of the probation have been violated. I.C. §§ 19-2603, 20-222; State v. Beckett, 122 

Idaho 324, 325, 834 P.2d 326, 327 (Ct. App. 1992); State v. Adams, 115 Idaho 1053, 1054, 772 

P.2d 260, 261 (Ct. App. 1989); State v. Hass, 114 Idaho 554, 558, 758 P.2d 713, 717 (Ct. App. 

1988). In determining whether to revoke probation, a court must examine whether the probation 

is achieving the goal of rehabilitation and consistent with the protection of society. State v. 

Upton, 127 Idaho 274, 275, 899 P.2d 984, 985 (Ct. App. 1995); Beckett, 122 Idaho at 325, 834 

P.2d at 327; Hass, 114 Idaho at 558, 758 P.2d at 717. The court may, after a probation violation 

has been established, order that the suspended sentence be executed or, in the alternative, the 

court is authorized under Idaho Criminal Rule 35 to reduce the sentence. Beckett, 122 Idaho at 

325, 834 P.2d at 327; State v. Marks, 116 Idaho 976, 977, 783 P.2d 315, 316 (Ct. App. 1989). 

The court may also order a period of retained jurisdiction. State v. Urrabazo, 150 Idaho 158, 

162, 244 P.3d 1244, 1248 (2010). A decision to revoke probation will be disturbed on appeal 

only upon a showing that the trial court abused its discretion. Beckett, 122 Idaho at 325, 834 

P.2d at 327. In reviewing the propriety of a probation revocation, the focus of the inquiry is the 

conduct underlying the trial court’s decision to revoke probation. Morgan, 153 Idaho at 621, 288 

P.3d at 838. Thus, this Court will consider the elements of the record before the trial court 

relevant to the revocation of probation issues that are properly made part of the record on appeal. 

Id. 

Sentencing is also a matter for the trial court’s discretion. Both our standard of review 

and the factors to be considered in evaluating the reasonableness of a sentence are well 

established and need not be repeated here. See State v. Hernandez, 121 Idaho 114, 117-18, 822 

P.2d 1011, 1014-15 (Ct. App. 1991); State v. Lopez, 106 Idaho 447, 449-51, 680 P.2d 869, 

871-73 (Ct. App. 1984); State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct. App. 1982). 

When reviewing the length of a sentence, we consider the defendant’s entire sentence. State v. 

Oliver, 144 Idaho 722, 726, 170 P.3d 387, 391 (2007). 

When we review a sentence that is ordered into execution following a period of 

probation, we examine the entire record encompassing events before and after the original 

judgment. State v. Hanington, 148 Idaho 26, 29, 218 P.3d 5, 8 (Ct. App. 2009). We base our 

review upon the facts existing when the sentence was imposed as well as events occurring 
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between the original sentencing and the revocation of the probation. Id. Thus, this Court will 

consider the elements of the record before the trial court that are properly made part of the record 

on appeal and are relevant to the defendant’s contention that the trial court should have further 

reduced the sentence sua sponte upon revocation of probation. Morgan, 153 Idaho at 621, 288 

P.3d at 838. 

Applying the foregoing standards, and having reviewed the record in this case, we cannot 

say that the district court abused its discretion in revoking probation. Assuming Burnet can 

challenge the district court’s failure to further sua sponte reduce his sentence, we also conclude 

that the district court did not err in ordering execution of Burnet’s underlying sentence without 

further reduction. The order revoking probation and executing a reduced sentence of a unified 

term of five years, with four years determinate, is affirmed.