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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 38591

ALBERT R. MOORE,

Petitioner-Appellant,

v.

STATE OF IDAHO,

Respondent.

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2012 Unpublished Opinion No. 637

Filed: September 17, 2012

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED 

OPINION AND SHALL NOT 

BE CITED AS AUTHORITY

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada

County. Hon. Ronald J. Wilper, District Judge. 

Judgment dismissing petition for post-conviction relief, affirmed.

Albert R. Moore, Boise, pro se appellant.

Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy 

Attorney General, Boise, for respondent. 

________________________________________________

GUTIERREZ, Judge

Albert R. Moore appeals from the district court’s judgment dismissing his petition for 

post-conviction relief. Moore asserts the district court erred because he raised a genuine issue of 

material fact primarily in regards to various claims of prosecutorial misconduct and ineffective 

assistance of counsel. Moore also asserts claims relating to violations of his speedy trial rights, 

vindictive prosecution, double jeopardy, improper jury instructions, false arrest, and other

constitutional violations including application of impermissible ex post facto laws. For the 

reasons set forth below, we affirm. 

I.

FACTS AND PROCEDURE

In September 2006, the State charged Moore, after his arrest, with misdemeanor driving 

under the influence (DUI). The State later filed an amended complaint enhancing the charge to a 

felony (the first case) because Moore had two previous convictions for DUI within the previous 

ten years, occurring in North Dakota in 1999 and in Idaho earlier in 2006. In April 2007, while 
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the first case was pending, police again arrested Moore for DUI, and the State charged Moore 

with a second felony DUI (the second case). Moore exercised his right to a jury trial in the 

second case. The trial proceeded in two phases: the first phase related to whether Moore was 

driving under the influence prior to the time of his arrest; the second phase related to whether 

there was sufficient evidence of two prior DUI convictions within ten years supporting the felony 

enhancement. In the first phase of trial, the jury found Moore guilty of DUI. As to the second 

phase of the trial, Moore argued in a motion in limine prior to trial that the North Dakota 

conviction could not be used to enhance the Idaho DUI charge to a felony because the North 

Dakota statute did not substantially conform to Idaho’s DUI statute and the North Dakota 

conviction was constitutionally defective. Moore also objected to the admission of documents 

pertaining to the North Dakota conviction. The district court denied Moore’s motion in limine

and overruled his objection to the evidence. The jury thereafter found Moore guilty of the felony 

enhancement based on the two prior DUI convictions, and in July 2008, the district court entered 

a judgment of conviction. The first case had been delayed for various reasons. It was not until 

December 2008, after conviction in the second case, that Moore entered a conditional guilty plea 

to the first charge of felony DUI, reserving the right to appeal the denial of his motion to dismiss 

on speedy trial grounds and the issue of whether the North Dakota conviction could be used to 

enhance the DUI charge to a felony. After conviction in each case, the district court imposed 

concurrent, unified sentences of six years, with one year determinate. Moore appealed both 

cases, which the court consolidated for purposes of appeal. 

On appeal, this Court concluded the district court was correct in finding the North Dakota 

statute substantially conformed to Idaho’s DUI statute and that the out-of-state conviction was 

not constitutionally defective. However, we determined the district court erroneously allowed 

the admission of evidence regarding the prior, out-of-state conviction in the trial of the second 

case because the documents were not properly authenticated. We vacated that judgment of 

conviction. We rejected Moore’s claims of error in the first case relating to violation of his 

speedy trial rights, but we remanded the case for determination as to whether Moore was entitled 

to withdraw his conditional guilty plea because of the vacation of the judgment of conviction in 

the second case. See generally State v. Moore, 148 Idaho 887, 231 P.3d 532 (Ct. App. 2010). 

On remand, the district court found Moore’s reservations in his guilty plea in the first 

case did not include evidentiary errors with respect to improperly authenticated documents 
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showing the North Dakota conviction and effectively denied Moore’s motion to withdraw his 

guilty plea.1 The district court entered an amended judgment of conviction and later entered a 

second amended judgment of conviction to correct the sentence. Moore appealed from his 

second amended judgment of conviction and this Court affirmed. State v. Moore, 152 Idaho 203, 

206, 268 P.3d 471, 474 (Ct. App. 2011). 

Moore thereafter filed a petition for post-conviction relief, asserting at least five claims in 

relation to the second case, in which he went to trial. In his first and second claims, Moore 

asserted prosecutorial misconduct in that the State secured his conviction through perjury and 

both the State and the court withheld evidence by not allowing police reports to be submitted to 

the jury during deliberations. In his third, fourth, and fifth claims, Moore asserted his counsel 

provided ineffective assistance by failing to obtain a mistrial, failing to obtain an out-of-state 

court transcript showing his prior conviction was not for DUI, and failing to obtain affidavits 

proving certain police were not present when Moore was arrested. In relation to the first case, in

which Moore pled guilty, Moore claimed the prosecution was vindictive for pursuing the case 

after the statutory time for a speedy trial had run. Throughout his many filings to the court, 

however, Moore also argued violations of his speedy trial rights, double jeopardy, improper jury 

instructions, false arrest, and other constitutional violations. 

The district court granted Moore’s motion for appointment of counsel. The State then

moved for summary dismissal. It argued in support that Moore’s petition asserted claims that 

should have been or were in fact addressed in the criminal case or on appeal, and were, therefore,

either waived or barred. The State further asserted that even if not barred, Moore failed to raise 

any genuine issue of material fact as to any claim. After a hearing, the court granted the State’s 

motion and summarily dismissed the petition. Moore timely appeals. 

II.

STANDARD OF REVIEW

A petition for post-conviction relief initiates a civil, rather than criminal, proceeding, 

governed by the Idaho Rules of Civil Procedure. State v. Yakovac, 145 Idaho 437, 443, 180 P.3d 

476, 482 (2008). See also Pizzuto v. State, 146 Idaho 720, 724, 202 P.3d 642, 646 (2008). Like 

 1 The disposition of the second case upon remand is unclear from the record. The State 

asserts the charge was reduced to a misdemeanor; the transcript from the post-conviction hearing 

on the State’s motion to dismiss indicates there was a misdemeanor conviction on the second 

offense, but also indicates there may have been a new trial on a felony charge. 
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plaintiffs in other civil actions, the petitioner must prove by a preponderance of evidence the 

allegations upon which the request for post-conviction relief is based. Idaho Code § 19-4907; 

Stuart v. State, 118 Idaho 865, 869, 801 P.2d 1216, 1220 (1990); Goodwin v. State, 138 Idaho 

269, 271, 61 P.3d 626, 628 (Ct. App. 2002). A petition for post-conviction relief differs from a 

complaint in an ordinary civil action, however, in that it must contain more than “a short and 

plain statement of the claim” that would suffice for a complaint under Idaho Rule of Civil 

Procedure 8(a)(1). State v. Payne, 146 Idaho 548, 560, 199 P.3d 123, 135 (2008); Goodwin, 138 

Idaho at 271, 61 P.3d at 628. The petition must be verified with respect to facts within the 

personal knowledge of the petitioner, and affidavits, records or other evidence supporting its 

allegations must be attached, or the petition must state why such supporting evidence is not 

included. I.C. § 19-4903. In other words, the petition must present or be accompanied by 

admissible evidence supporting its allegations or it will be subject to dismissal. Wolf v. State, 

152 Idaho 64, 67, 266 P.3d 1169, 1172 (Ct. App. 2011); Roman v. State, 125 Idaho 644, 647, 873 

P.2d 898, 901 (Ct. App. 1994).

Idaho Code § 19-4906 authorizes summary dismissal of a petition for post-conviction 

relief, either pursuant to motion of a party or upon the court’s own initiative, if “it appears from 

the pleadings, depositions, answers to interrogatories, and admissions and agreements of facts, 

together with any affidavits submitted, that there is no genuine issue of material fact and the 

moving party is entitled to judgment as a matter of law.” I.C. § 19-4906(c). When considering 

summary dismissal, the district court must construe disputed facts in the petitioner’s favor, but 

the court is not required to accept either the petitioner’s mere conclusory allegations, 

unsupported by admissible evidence, or the petitioner’s conclusions of law. Payne, 146 Idaho at 

561, 199 P.3d at 136; Roman, 125 Idaho at 647, 873 P.2d at 901. Moreover, because the district 

court rather than a jury will be the trier of fact in the event of an evidentiary hearing, the district 

court is not constrained to draw inferences in the petitioner’s favor, but is free to arrive at the 

most probable inferences to be drawn from the evidence. Yakovac, 145 Idaho at 444, 180 P.3d at 

483; Wolf, 152 Idaho at 67, 266 P.3d at 1172; Hayes v. State, 146 Idaho 353, 355, 195 P.3d 712, 

714 (Ct. App. 2008). Such inferences will not be disturbed on appeal if the uncontroverted 

evidence is sufficient to justify them. Chavez v. Barrus, 146 Idaho 212, 218, 192 P.3d 1036, 

1042 (2008); Hayes, 146 Idaho at 355, 195 P.2d at 714; Farnsworth v. Dairymen’s Creamery 

Ass’n, 125 Idaho 866, 868, 876 P.2d 148, 150 (Ct. App. 1994).
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Claims may be summarily dismissed if the petitioner’s allegations are clearly disproven

by the record of the criminal proceedings, if the petitioner has not presented evidence making a 

prima facie case as to each essential element of the claims, or if the petitioner’s allegations do 

not justify relief as a matter of law. Kelly v. State, 149 Idaho 517, 521, 236 P.3d 1277, 1281 

(2010); McKay v. State, 148 Idaho 567, 570, 225 P.3d 700, 703 (2010); DeRushé v. State, 146 

Idaho 599, 603, 200 P.3d 1148, 1152 (2009); Charboneau v. State, 144 Idaho 900, 903, 174 P.3d 

870, 873 (2007); Berg v. State, 131 Idaho 517, 518, 960 P.2d 738, 739 (1998); Murphy v. State, 

143 Idaho 139, 145, 139 P.3d 741, 747 (Ct. App. 2006); Cootz v. State, 129 Idaho 360, 368, 924 

P.2d 622, 630 (Ct. App. 1996). Thus, summary dismissal of a claim for post-conviction relief is

appropriate when the court can conclude, as a matter of law, that the petitioner is not entitled to 

relief even with all disputed facts construed in the petitioner’s favor. For this reason, summary 

dismissal of a post-conviction petition may be appropriate even when the State does not 

controvert the petitioner’s evidence. See Payne, 146 Idaho at 561, 199 P.3d at 136; Roman, 125 

Idaho at 647, 873 P.2d at 901.

Conversely, if the petition, affidavits and other evidence supporting the petition allege 

facts that, if true, would entitle the petitioner to relief, the post-conviction claim may not be 

summarily dismissed. Charboneau v. State, 140 Idaho 789, 792, 102 P.3d 1108, 1111 (2004); 

Berg, 131 Idaho at 519, 960 P.2d at 740; Stuart v. State, 118 Idaho 932, 934, 801 P.2d 1283, 

1285 (1990); Sheahan v. State, 146 Idaho 101, 104, 190 P.3d 920, 923 (Ct. App. 2008); Roman, 

125 Idaho at 647, 873 P.2d at 901. If a genuine issue of material fact is presented, an evidentiary 

hearing must be conducted to resolve the factual issues. Kelly, 149 Idaho at 521, 236 P.3d at 

1281; Payne, 146 Idaho at 561, 199 P.3d at 136; Goodwin, 138 Idaho at 272, 61 P.3d at 629.

On appeal from an order of summary dismissal, we apply the same standards utilized by 

the trial courts and examine whether the petitioner’s admissible evidence asserts facts which, if 

true, would entitle the petitioner to relief. Ridgley v. State, 148 Idaho 671, 675, 227 P.3d 925, 

929 (2010); Berg, 131 Idaho at 519, 960 P.2d at 740; Sheahan, 146 Idaho at 104, 190 P.3d at 

923; Roman, 125 Idaho at 647, 873 P.2d at 901. Over questions of law, we exercise free review. 

Rhoades v. State, 148 Idaho 247, 250, 220 P.3d 1066, 1069 (2009); Downing v. State, 136 Idaho 

367, 370, 33 P.3d 841, 844 (Ct. App. 2001); Martinez v. State, 130 Idaho 530, 532, 944 P.2d 

127, 129 (Ct. App. 1997).
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Claims in a post-conviction petition are also subject to dismissal if they are either barred 

under principles of res judicata or have been forfeited. Res judicata applies to claims in a 

post-conviction petition that have been previously addressed on direct appeal. State v. LePage, 

138 Idaho 803, 811, 69 P.3d 1064, 1072 (Ct. App. 2003). Idaho Code § 19-4901(b) provides,

“Any issue which could have been raised on direct appeal, but was not, is forfeited and may not 

be considered in post-conviction proceedings . . . .” Such an issue may only be considered if the 

court determines that the asserted basis for relief raises a substantial doubt as to the reliability of 

the defendant’s guilt, and could not, in the exercise of due diligence have been brought earlier. 

I.C. § 19-4901(b). 

III.

DISCUSSION

As stated above, Moore asserts numerous claims in his petition for post-conviction relief,

including prosecutorial misconduct, ineffective assistance of counsel, violations of his right to a 

speedy trial, vindictive prosecution, double jeopardy, improper jury instructions, false arrest, and 

other various grounds. The State responds that Moore has shown no error in the summary 

dismissal of his petition because all of his claims were forfeited or resolved in the criminal case 

or on appeal, are without factual basis, or both. We address each claim in turn. 

A. Prosecutorial Misconduct 

Moore asserts the prosecution committed misconduct by introducing perjured testimony 

and withholding evidence. Without objection at trial, a conviction will be reversed for 

prosecutorial misconduct only if the conduct is sufficiently egregious so as to result in 

fundamental error. State v. Field, 144 Idaho 559, 571, 165 P.3d 273, 285 (2007). Even when 

prosecutorial misconduct has resulted in fundamental error, the conviction will not be reversed 

when that error is harmless. State v. Perry, 150 Idaho 209, 228, 245 P.3d 961, 980 (2010). The 

State may not knowingly use false evidence to obtain a conviction, including false testimony that 

the prosecution allows to go uncorrected. Sivak v. State, 134 Idaho 641, 649, 8 P.3d 636, 644 

(2000) (citing Napue v. Illinois, 360 U.S. 264, 269 (1959)). Such nondisclosure of material 

evidence affecting a witness’s credibility, when the reliability of the witness may determine the 

guilt or innocence of the defendant, justifies a new trial irrespective of the good or bad faith of 

the prosecution. Id. (citing Giglio v. United States, 405 U.S. 150, 153-54 (1972)). A stricter 

materiality standard is used in cases involving the prosecution’s knowing use of false testimony 
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than in cases where the prosecution has failed to disclose exculpatory evidence. Id. Because a 

conviction obtained by the knowing use of perjured testimony is fundamentally unfair, the 

conviction will be set aside if there is any reasonable likelihood that the false testimony could 

have affected the judgment of the jury. Id. (citing United States v. Bagley, 473 U.S. 667, 678 

(1985)). Similar to the harmless error analysis of claims of prosecutorial misconduct without 

objection, perjured testimony will not be considered material if its use was harmless beyond a 

reasonable doubt. Id. 

There are numerous defects in Moore’s claim of prosecutorial misconduct by use of false 

testimony. The testimony Moore refers to is that testimony from witnesses indicating that 

Meridian police were on site when Moore was arrested. Moore asserts the Meridian police were 

not present and the State had an obligation to correct the false testimony. Though Moore 

included his own affidavit stating the Meridian police were not present, despite the conflict with 

testimony of the witnesses, there is nothing more than Moore’s bald assertion to support that the 

witnesses testified falsely. Moore also presented evidence from the Meridian Police Department 

indicating that the agency has no record of responding to an incident at the location of Moore’s 

arrest on the date that he was arrested. However, that evidence also shows that such record may 

not be available, even when police did respond to a dispatch, if the police from that agency took 

no action. By Moore’s own assertions, Meridian police did not have jurisdiction in the area 

where Moore was arrested and he infers it was not the Meridian police who made the arrest. 

Although Moore concludes the lack of police records necessarily shows the Meridian police 

were not present, we need not accept Moore’s conclusion based on his inferences from the record

when it is equally likely that the police were present but took no action--resulting in the lack of 

police records. Even if we were to conclude the evidence supported a finding that the testimony 

was in fact false, Moore makes no claim as to the materiality of this evidence. From our review 

of the record, we find nothing that would make the presence or absence of Meridian police at the 

scene of Moore’s arrest material to Moore’s guilt or innocence on the charge of felony DUI. 

Therefore, Moore fails to raise a genuine issue of material fact. 

Next, Moore claims prosecutorial misconduct due to the withholding of evidence by the 

prosecution and the court. This claim by Moore is based on the fact that documents, particularly 

police reports, used by a witness to refresh his recollection, were not provided to the jury when 
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requested during deliberations. Moore asserts this is both a Brady2 violation, and an arbitrary 

denial of the right to present evidence to the jury that is material and trustworthy. He also argues 

this violated Idaho Rule of Evidence 612(a)-(c) and, overall, resulted in manifest injustice 

requiring complete reversal of all charges. 

Moore misunderstands the nature of a Brady violation. A Brady violation occurs where 

there was evidence favorable to the defendant, either because it is exculpatory or impeaching, the 

State purposefully or inadvertently suppressed the evidence, and prejudice ensued. Roeder v. 

State, 144 Idaho 415, 418, 162 P.3d 794, 797 (Ct. App. 2007). Here, the State did not fail to 

disclose or suppress the evidence contained within the police report. Rather, that evidence was 

brought forward through testimony of the State’s witness. Therefore, there is no basis to assert a 

Brady violation. This is also not an arbitrary denial of a defendant’s right to produce evidence 

that is material and trustworthy, as again, the evidence was actually presented to the jury through 

testimony. Furthermore, by the wording of Idaho Rule of Evidence 612, an adverse party is 

entitled to have the writing or object used to refresh a witness’s memory produced “at the trial, 

hearing, or deposition in which the witness is testifying.” I.R.E. 612(a) and (b). This rule 

provides no requirement that the writing or object be produced after testimony or during jury 

deliberations, and accordingly, we find no violation of the rule. 

Though Moore does not assert that the defense requested the police report or portions 

thereof to be introduced as evidence or that the police report itself was actually admitted, we will 

assume as much for the sake of argument. Nevertheless, it is Moore’s burden to show that the 

failure of the district court (or prosecution) to provide the jury evidence, here copies of the police 

report, during deliberations was prejudicial error. State v. Whiteley, 124 Idaho 261, 269, 858 

P.2d 800, 808 (Ct. App. 1993). Without showing prejudice, any error will be deemed harmless. 

Id. In Whiteley, this Court determined that, unlike a case where evidence was not admitted at all 

during trial, where there was an absence of a tape player to allow the jury to again listen to 

evidence it had already heard, we determined the district court did not abuse its discretion and 

the alleged error was harmless. Id. at 270, 858 P.2d 809. Without additional facts from Moore 

as to how the failure to produce the police report to the jury actually prejudiced him, we 

conclude that Moore raises no genuine issue of material facts as to whether the district court 

abused its discretion in denying the jury copies of that report, where the facts contained within 

 2 See Brady v. Maryland, 373 U.S. 83 (1963). 
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the report had been testified to, and whether the alleged error by the district court was otherwise

prejudicial. 

B. Ineffective Assistance of Counsel

Moore asserts his trial counsel provided ineffective assistance by failing to obtain a 

mistrial; by failing to obtain an out-of-state court transcript showing his prior conviction was not 

for DUI, but rather for a lesser included offense; and by failing to obtain affidavits proving 

certain police were not present when Moore was arrested. 

A claim of ineffective assistance of counsel may properly be brought under the Uniform 

Post-Conviction Procedure Act. Barcella v. State, 148 Idaho 469, 477, 224 P.3d 536, 544 (Ct. 

App. 2009). To prevail on an ineffective assistance of counsel claim, the defendant must show 

that the attorney’s performance was deficient and that the defendant was prejudiced by the 

deficiency. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Barcella, 148 Idaho at 477, 

224 P.3d at 544. To establish a deficiency, the petitioner has the burden of showing that the 

attorney’s representation fell below an objective standard of reasonableness. Gonzales v. State, 

151 Idaho 168, 172, 254 P.3d 69, 73 (Ct. App. 2011). To establish prejudice, the petitioner must 

show a reasonable probability that, but for the attorney’s deficient performance, the outcome of 

the proceeding would have been different. Id. This Court has long adhered to the proposition 

that tactical or strategic decisions of trial counsel will not be second-guessed on appeal unless 

those decisions are based on inadequate preparation, ignorance of relevant law, or other 

shortcomings capable of objective evaluation. Id. To survive a motion for summary disposition, 

a post-conviction petitioner must establish a genuine issue of fact as to both deficiency and 

prejudice. Pratt v. State, 134 Idaho 581, 583, 6 P.3d 831, 833 (2000). 

As to the issue of a mistrial, Moore makes no assertions as to what trial errors were so 

egregious as to warrant a mistrial or on what basis counsel was deficient by failing to move for a 

mistrial. Consequently, Moore raises no issue of material fact as to that ground for relief. 

Moore’s claim that counsel3 was ineffective by failing to obtain a transcript from the North 

Dakota court is largely an extension of Moore’s assertion that his North Dakota conviction was 

not substantially conforming to Idaho’s DUI statute. He also continues to argue the Idaho felony 

conviction, based on the unconstitutional North Dakota conviction, cannot stand, and he 

 3 It is unclear whether Moore attributes this failure to trial counsel or appellate counsel. 
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recommends a review of the entire out-of-state transcript to “back [his] accusations up” that the 

sentence in this case was based on a prior unconstitutional conviction. The substance of this 

argument rests on Moore’s contention that he was convicted in North Dakota of “actual physical 

control” of a vehicle. Moore contends that “actual physical control” of a vehicle (presumably 

while under the influence) is a lesser included offense of DUI, and that because he was convicted 

of “actual physical control,” not a DUI, in North Dakota, the North Dakota conviction could not 

be used to enhance the Idaho DUI charge to a felony. He asserts that had the prosecution or trial 

counsel properly investigated the North Dakota conviction, his Idaho DUI charge would not have 

been enhanced to a felony. While Moore now frames these arguments as a claim of ineffective 

assistance of counsel, both the constitutional and the substantially conforming arguments were 

addressed at the trial court level and again on direct appeal of Moore’s criminal case. In Moore’s

first criminal appeal, this Court specifically found that his North Dakota conviction was not 

constitutionally defective and that the North Dakota statute was substantially conforming to 

Idaho’s DUI statute. We also made clear in that opinion that we would not base a conclusion 

that a foreign statute is substantially conforming on the interpretation of the courts of that state, 

but rather on the plain language of the statute. Moore, 148 Idaho at 898, 231 P.3d at 543. 

Accordingly, any argument Moore makes now that the North Dakota conviction was for a lesser 

included offense, rather than DUI, based on North Dakota courts’ interpretation of its own DUI 

statutes, is of no consequence in this action. Additionally, based on the resolution of these issues 

on direct appeal, Moore raises no genuine issue of material fact because he cannot show any 

deficiency by counsel in failing to obtain the North Dakota court transcript or any prejudice 

resulting therefrom. Finally, Moore’s claim of ineffective assistance due to counsel’s failure to 

obtain affidavits, proving certain police were not present when Moore was arrested, also lacks 

any genuine issue of fact because, as noted above, Moore cannot show how this evidence was 

material, nor has he alleged any prejudice resulting from the allegedly false testimony. 

C. Other Alleged Grounds for Post-Conviction Relief

Moore asserts violations of his right to a speedy trial, vindictive prosecution, double 

jeopardy, improper jury instructions, false arrest, and other constitutional violations including 

application of improper ex post fact laws. We find each of these claims to be without merit. The 

issue of Moore’s right to a speedy trial is barred because it was resolved in prior criminal

proceedings and this Court found no violation. See Moore, 148 Idaho 887, 213 P.3d 532. This 
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claim also largely forms the basis for Moore’s claim of vindictive prosecution; however, as there 

was no violation of his right to a speedy trial, such an assertion is unsupported by anything in the 

record. The other basis for Moore’s assertion of vindictive prosecution, which is blurred with his 

claim of being put in double jeopardy, is an alleged violation of Idaho Criminal Rule 48. Idaho 

Criminal Rule 48 bars prosecution for the same offense after dismissal if it is a misdemeanor, but 

not if it is a felony. However, the only evidence Moore provides shows an amended complaint 

enhancing the misdemeanor DUI charge to a felony and a court register of actions indicating a 

subsequent dismissal of what appears to be that felony DUI charge. There are no court 

documents showing dismissal of a misdemeanor and subsequent cases brought upon the same 

conduct. We cannot, therefore, conclude from the record there was any violation of Rule 48, that 

Moore was twice put in jeopardy for the same conduct, or that the prosecution was vindictive in 

pursuing charges. 

Finally, Moore’s claims of false arrest, improper jury instruction, and ex post facto issues 

are without either legal or factual basis in the record. For example, Moore provides no context

as to his asserted “false arrest” except to maintain that he “did not drive” and he makes 

conflicting statements, sometimes asserting there was no second arrest and in other places in the 

record asserting that arrest was improper. Moore’s jury instructions argument--that the jury was 

not properly instructed on the elements of the crime or on the previous DUI convictions--stems 

from Moore’s belief that “actual, physical control” is a lesser included offense of DUI in North 

Dakota. He provides no Idaho legal authority to support this proposition, and again, we reiterate 

that we will not look to North Dakota courts’ interpretations of its DUI statute to determine

whether a prior conviction is substantially conforming to Idaho’s DUI statute. In his ex post 

facto challenge, Moore makes no attempt to explain how application of the DUI statute violated 

the prohibition against ex post facto laws. It may be inferred that Moore’s assertion is based on 

the amendment to the DUI statute changing the felony enhancement from two prior DUIs within 

five years, to two prior DUIs within ten years. This Court has already clearly determined that 

application of the amendment does not violate the constitutional provision against ex post facto 

laws. State v. Lamb, 147 Idaho 133, 135-36, 206 P.3d 497, 499-500 (Ct. App. 2009). Moore 

fails to raise a genuine issue of fact on any of these claims. 
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III.

CONCLUSION

We conclude Moore failed to raise any issue of genuine fact in his post-conviction 

petition, and accordingly, the district court did not err in granting the State’s motion for summary 

dismissal. Therefore, we affirm the judgment dismissing Moore’s petition for post-conviction 

relief. 

Chief Judge GRATTON and Judge LANSING CONCUR.