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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 39645

STATE OF IDAHO,

Plaintiff-Respondent,

v.

MICHAEL DEWAYNE WEATHERS,

Defendant-Appellant.

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2013 Unpublished Opinion No. 444

Filed: April 12, 2013

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED 

OPINION AND SHALL NOT 

BE CITED AS AUTHORITY

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

Bannock County. Hon. David C. Nye, District Judge. 

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

with three-year determinate term for sexual abuse of a child under the age of 

sixteen years, affirmed.

Sara B. Thomas, State Appellate Public Defender; Shawn F. Wilkerson, Deputy 

Appellate Public Defender, Boise, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy 

Attorney General, Boise, for respondent. 

________________________________________________

Before LANSING, Judge; GRATTON, Judge;

and MELANSON, Judge

PER CURIAM

Michael Dewayne Weathers pled guilty to sexual abuse of a child under the age of 

sixteen years. Idaho Code § 18-1506(1)(B). The district court imposed a unified ten-year

sentence with a three-year determinate term, but after a period of retained jurisdiction, suspended 

the sentence and placed Weathers on probation for a period of ten years. Subsequently, 

Weathers admitted to violating several terms of the probation, and the district court consequently 

revoked probation and ordered execution of the original sentence. Weathers appeals contending 

that the district court abused its discretion in revoking probation and failing to sua sponte reduce 
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his sentence. Weathers also asserts that the Idaho Supreme Court denied him due process and 

equal protection when it only partially granted his motion to augment the record on appeal.

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. 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.

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 
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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. 

Weathers asks this Court to hold that the Idaho Supreme Court deprived him of due 

process and equal protection when it only partially granted 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.

Weathers 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, 

Weathers asks us to determine that the Idaho Supreme Court violated constitutional law by 

denying his motion. As this is beyond the scope of our authority, we will not address the issue 

further. 

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 Weathers’ original sentence without modification. Therefore, the order revoking 

probation and directing execution of Weathers’ previously suspended sentence is affirmed.