1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 41625

STATE OF IDAHO ,

Plaintiff

- Respondent ,

v.

ROMELIO ALVIN MARTINEZ, JR. ,

Defendant

- Appellant

. ) ) ) ) ) ) ) ) ) ) 2015 Unpublished Opinion No. 314

Filed: January 21, 2015

Stephen W. Kenyon, 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THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY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. Gregory S. Anderson , District Judge.

Order denying I.C.R. 35 motion for reduction of sentence, affirmed

.
Sara B. Thomas, State Appellate Public Defender; Kimberly E. Smith , Deputy Appellate Public Defender, Boise, for appellant.

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

________________________________________________ MELANSON, Chief Judge
Romelio Alvin Martinez, Jr., appeals from the district court’s order denying his I.C.R. 35

motion for reduction of sentence . For the reasons set forth below, we affirm.

Martinez entered an Alford 1 plea to burglary and was sentenced in October 2002 to a
unified term of four years, with a minimum period of confinement of six months. Martinez was
also ordered to pay a fine of $500, $141.58 in restitution, a $500 public defender fee, $50 to the

v ictim’s r elief f und, and $38.50 in court costs. In Janua ry 2003, Martinez filed an I.C.R. 35

motion for reduction of sentence, which was denied. In January 2006, Martinez again filed a
Rule 35 motion for reduction of sentence. In response, the district court entered an amended

1 See North Carolina v. Alford , 400 U.S. 25 (1970).2 judgment of conviction, creditin g Martinez for sixty additional days of time served, and
subsequently denied his motion for reduction of sentence.

In Octob er 2013, Martinez filed an ostensible motion for credit for time served in which
he requested, in essence, that he receive credit for time served in the form o f forgiveness of his
unpaid court fines and fees, including $883.88 stemming from his burglary conviction. The

district court denied this motion without opinio n or hearing. Martinez appeals, contending that

the district court abused its discretion by denying his Rule 35 motion.
We initially note that, as acknowledged by b oth parties, Martinez’s motion

-- despite its

name

-- was not a motion for credit for time served, as he did not ask for any additional credit for

time served o r allege that the credit already given him was incorrect. See I.C. § 18

- 309 (allowing
for credit for prejudgment incarceration when computing the applicable term of imprisonment ).
Instead, Martinez only asked for forgiveness of the fines and fees imposed as part of his
sentence. Accordingly, we agree with the parties that the motion is effectively a n I.C.R. 35(b)

motion for reduction of sentence and will address it as such

. A motion for re duction of sentence under Rule 35(b) is essentially a plea for l eniency,

addressed to the sound discretion of the court. State v. Knighton , 143 Idaho 318, 319, 144 P.3d

23, 24 (2006); State v. Allbee , 115 Idaho 845, 846, 771 P.2d 66, 67 (Ct. A pp. 1989). However,

such a motion must be filed “within 120 days of the entry of the judgment imposing sentence or
order releasing retained jurisdiction.” I.C.R. 35(b). The 120

- day filing deadline described in
Rule 35(b) creates a jurisdictional limitation on the authority of the trial court to entertain

motions under the rule. State v. Fox , 122 Idaho 550, 552, 835 P.2d 1361, 1363 (Ct. App. 1992) ;

State v. Hocker , 119 Idaho 105, 106, 803 P.2d 1011, 1012 (Ct. App. 1991); State v. Parrish , 110
Idaho 599, 600, 716 P.2d 1371, 1372 (Ct. App. 1986). Without a timely filing, the trial court

cannot consider the motion. Fox , 122 Idaho at 552, 835 P.2d at 1363. Whether a court lacks
jurisdiction is a question of law over which we exercise free review. State v. Jones , 140 Idaho

755, 757, 101 P. 3d 699, 701 (2004).
Martinez acknowledged in his brief, and the record confirms, that his Rule 35(b) motion
was filed more than ten years after the entry of his judgment of conviction. As a result, the3 district court lacked jurisdiction to grant Martinez’ s untimely Rule 35(b) motion for reduction of

sentence. 2 Accordingly, the district court’s order denying Martinez’s motion is affirmed.
Judge LANSING and Judge GUTIERREZ, CONCUR

.

2 Additionally, no defendant may file more than one motion seeking a reduction of sentence. I.C.R. 35(b). This prohibition on successive motions for reduction of sentence under Rule 35(b) is a jurisdictional bar. State v. Bottens , 137 Idaho 730, 733, 52 P .3d 875, 878 (Ct. App. 2002)

. Martinez previous ly filed motion s for reduction of his sentence in 2003 and 2006. Thus, the district court also lacked jurisdiction because this was a successive motion for reduction of sentence.