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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 44660

STATE OF IDAHO,

Plaintiff-Respondent,

v.

DOUGLAS B. MALAR,

Defendant-Appellant.

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2017 Unpublished Opinion No. 621

Filed: October 18, 2017

Karel A. Lehrman, 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THIS IS AN UNPUBLISHED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. Cynthia K.C. Meyer, District Judge. 

Order revoking probation and order granting Idaho Criminal Rule 35 

motion, affirmed.

Eric D. Fredericksen, 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 GRATTON, Chief Judge; GUTIERREZ, Judge;

and HUSKEY, Judge

________________________________________________

PER CURIAM

Douglas B. Malar pleaded guilty to felony driving under the influence, Idaho Code § 18-

8004. The district court sentenced Malar to a unified five-year sentence, with two years 

determinate, suspended the sentence and placed Malar on probation. Malar admitted violating 

the terms of his probation and the district court revoked probation, executed the sentence, and 

retained jurisdiction. After a period of retained jurisdiction, the district court suspended the 

sentence and placed Malar on probation. Malar admitted to violating the terms of the probation, 

and the district court ordered Malar to serve ninety days jail and continued his probation. Later, 

Malar again admitted to violating the terms of the probation, and the district court ordered Malar 

to participate in drug court. Subsequently, Malar violated the terms of his probation and the 
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district court ordered execution of the original sentence. Malar filed an Idaho Criminal Rule 35 

motion. Following a hearing, the district court granted the motion and reduced Malar’s sentence 

to a unified four-year sentence, with two years determinate. 

Malar was granted post-conviction relief and the district court entered amended 

judgments of conviction for Malar’s third and fourth probation violations as well as an amended 

order granting Malar’s I.C.R. 35 motion. Malar timely appeals, contending that the district court 

abused its discretion in revoking probation and failing to further reduce his sentence pursuant to 

his I.C.R. 35 motion.

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 I.C.R. 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. I.C. § 19-2601. 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. State v. 

Morgan, 153 Idaho 618, 621, 288 P.3d 835, 838 (Ct. App. 2012). Thus, this Court will consider 

the elements of the record before the trial court relevant to the revocation of probation issues 

which are properly made part of the record on appeal. 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.

Initially, we note that a lower court’s decision to grant or deny an I.C.R. 35 motion will 

not be disturbed in the absence of an abuse of discretion. State v. Villarreal, 126 Idaho 277, 281, 

882 P.2d 444, 448 (Ct. App. 1994). Both our standard of review and the factors to be considered 
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in evaluating the reasonableness of the sentence are well established. See State v. Hernandez, 

121 Idaho 114, 822 P.2d 1011 (Ct. App. 1991); State v. Toohill, 103 Idaho 565, 650 P.2d 707 

(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). Since the district court 

later modified Malar’s sentence, pursuant to his I.C.R. 35 motion, we will only review Malar’s 

modified sentence for an abuse of discretion. See State v. McGonigal, 122 Idaho 939, 940-41, 

842 P.2d 275, 276-77 (1992). Malar has the burden of showing a clear abuse of discretion on the 

part of the district court in failing to further reduce the sentence on Malar’s I.C.R. 35 motion. 

See State v. Cotton, 100 Idaho 573, 577, 602 P.2d 71, 75 (1979). Malar has failed to show such 

an abuse of discretion. Accordingly, the order of the district court granting Malar’s I.C.R. 35 

motion is affirmed. 

Therefore, the order revoking probation and directing execution of Malar’s previously 

suspended sentence and the order granting Malar’s I.C.R. 35 motion are affirmed.