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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 38649

STATE OF IDAHO,

Plaintiff-Respondent,

v.

JOSE M. FORTUNO-GARCIA,

Defendant-Appellant.

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2012 Unpublished Opinion No. 387

Filed: March 5, 2012

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED 

OPINION AND SHALL NOT 

BE CITED AS AUTHORITY

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

Jerome County. Hon. John K. Butler, District Judge. 

Order revoking probation and requiring execution of unified five-year sentence 

with two-year determinate term for felony driving under the influence of 

alcohol, affirmed.

Sara B. Thomas, State Appellate Public Defender; Justin M. Curtis, Deputy 

Appellate Public Defender, Boise, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney 

General, Boise, for respondent. 

________________________________________________

Before LANSING, Judge; GUTIERREZ, Judge;

and MELANSON, Judge

PER CURIAM

Jose M. Fortuno-Garcia was convicted of felony driving under the influence of alcohol, 

Idaho Code § 18-8004. The district court imposed a unified five-year sentence with a two-year

determinate term, but after a period of retained jurisdiction, suspended the sentence and placed 

Fortuno-Garcia on probation. Subsequently, Fortuno-Garcia admitted to violating several terms 

of the probation, and the district court consequently revoked probation and ordered execution of 

the original sentence. Fortuno-Garcia appeals, contending that the district court abused its 

discretion in revoking probation and that the sentence is excessive.
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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 is 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.

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 will 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 

between the original sentencing and the revocation of the probation. Id.

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

say that the district court abused its discretion either in revoking probation or in ordering 

execution of Fortuno-Garcia’s original sentence without modification. Therefore, the order 
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revoking probation and directing execution of Fortuno-Garcia’s previously suspended sentence is 

affirmed.