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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 40702

STATE OF IDAHO,

Plaintiff-Respondent,

v.

DENNIS E. ABBOTT,

Defendant-Appellant.

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2014 Unpublished Opinion No. 430

Filed: March 27, 2014

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THIS IS AN UNPUBLISHED 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, Twin 

Falls County. Hon. Randy J. Stoker, District Judge. 

Order denying motion to reconsider order denying motion for credit for time 

served, affirmed. 

Sara B. Thomas, State Appellate Public Defender; Sally J. Cooley, Deputy 

Appellate Public Defender, Boise, for appellant. 

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

Attorney General, Boise, for respondent. 

________________________________________________

GUTIERREZ, Chief Judge

Dennis E. Abbott appeals from the district court’s order denying Abbott’s motion to 

reconsider the order denying his motion for credit for time served while he was on probation. 

Generally, Abbott argues the district court erred by denying his motion to reconsider because 

Abbott was never truly “at large” while on probation. For the reasons set forth below, we affirm.

I.

FACTS AND PROCEDURE

In 1986, Abbott was convicted of lewd conduct with a minor under sixteen. The district 

court sentenced Abbott to an indeterminate life sentence and retained jurisdiction for 120 days. 

At the conclusion of the period of retained jurisdiction, the district court reduced the 

indeterminate sentence to forty years, suspended the forty-year sentence, and placed Abbott on 

probation. In 1988, upon finding Abbott violated the terms of his probation, the district court 

revoked probation and executed the indeterminate forty-year sentence.
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In 2006, Abbott filed an Idaho Criminal Rule 35 motion to correct an illegal sentence and 

a motion for credit for time served, seeking credit for time he served on probation. The district 

court denied both motions, and Abbott filed a timely notice of appeal. In an unpublished 

opinion, this Court affirmed the district court’s denial of Abbott’s Rule 35 motion and motion for 

credit for time served. See State v. Abbott, Docket No. 33216 (Ct. App. Mar. 8, 2007). 

In 2012, Abbott filed another motion for credit for time served. In the motion, Abbott 

requested that the district court credit his sentence for the entire 729-day period he was on 

probation.1 The district court denied Abbott’s motion, citing to Idaho Code §§ 18-309 and 

20-209A, and Taylor v. State, 145 Idaho 866, 869-70, 187 P.3d 1241, 1244-45 (Ct. App. 2008) 

as authority stating a defendant is not entitled to credit for time served while on probation. 

Abbott then moved the district court to reconsider its denial of Abbott’s motion for credit for 

time served. The district court denied the motion without a hearing. Abbott timely appeals from 

the order denying his motion to reconsider.

II.

ANALYSIS

Abbott alleges the district court erred by denying him credit for time served on probation. 

Whether the trial court properly applied the law governing credit for time served is a question of 

law over which we exercise free review. State v. Vasquez, 142 Idaho 67, 68, 122 P.3d 1167, 

1168 (Ct. App. 2005); State v. Brashier, 130 Idaho 112, 113, 937 P.2d 424, 425 (Ct. App. 1997). 

We defer to the trial court’s findings of fact, unless those findings are unsupported by substantial 

and competent evidence in the record and are therefore clearly erroneous. State v. DuValt, 131 

Idaho 550, 552-53, 961 P.2d 641, 643-44 (1998); State v. Davis, 139 Idaho 731, 734, 85 P.3d 

1130, 1133 (Ct. App. 2003). 

Abbott’s argument focuses on the term “at large” in Idaho Code § 18-309. This Court 

exercises free review over the application and construction of statutes. State v. Reyes, 139 Idaho 

502, 505, 80 P.3d 1103, 1106 (Ct. App. 2003). Where the language of a statute is plain and 

unambiguous, this Court must give effect to the statute as written, without engaging in statutory 

construction. State v. Burnight, 132 Idaho 654, 659, 978 P.2d 214, 219 (1999); State v. Escobar, 

 

1 Abbott previously requested 720 days credit for time served. State v. Abbott, Docket No. 

33216 (Ct. App. Mar. 8, 2007). It is unclear where the requested additional nine-day credit 

originates from.
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134 Idaho 387, 389, 3 P.3d 65, 67 (Ct. App. 2000). The language of the statute is to be given its 

plain, obvious, and rational meaning. Burnight, 132 Idaho at 659, 978 P.2d at 219. If the 

language is clear and unambiguous, there is no occasion for the court to resort to legislative 

history, or rules of statutory interpretation. Escobar, 134 Idaho at 389, 3 P.3d at 67. 

Idaho Code § 18-309 governs when credit for time served must be given:

In computing the term of imprisonment, the person against whom the 

judgment was entered, shall receive credit in the judgment for any period of 

incarceration prior to entry of judgment, if such incarceration was for the offense 

or an included offense for which the judgment was entered. The remainder of the 

term commences upon the pronouncement of sentence and if thereafter, during 

such term, the defendant by any legal means is temporarily released from such 

imprisonment and subsequently returned thereto, the time during which he was at 

large must not be computed as part of such term. 

(Emphasis added.) Abbot asserts that “at large,” as referenced in section 18-309, should be 

construed as living without restriction. He argues that he was restricted by the Department of 

Correction and was not free to do what he wanted with his time and money in the same way a 

law-abiding citizen would be able to, such as being required to submit to and pay for supervision 

as a condition of probation. Abbott claims that living with these restrictions did not allow him 

the opportunity to live “at large.” Since he was not “at large,” Abbot contends he should be 

credited for the 729 days he spent on probation even though he was not incarcerated during that 

time.

Abbott’s argument is inconsistent with the established law concerning credit for time 

served. Section 18-309 awards credit for periods of incarceration, if the incarceration was for the 

offense or an included offense for which judgment was entered, not for restrictions on personal 

liberties. An analogous argument was raised in State v. Climer, 127 Idaho 20, 22, 896 P.2d 346, 

348 (Ct. App. 1995). In Climer, this Court was asked to define the statutory construction of

section 18-309 and to determine whether, under the statute, house arrest should be credited as

time served due to the deprivation of liberty. This Court declined Climer’s argument that 

incarceration includes all restraints of personal liberty and concluded that incarceration means to 

confine in a prison or jail. Climer, 127 Idaho at 23, 896 P.2d at 349. 

In this case, Abbott’s personal liberties were restrained due to the conditions of 

probation. The restraint on Abbott’s personal liberties did not affect his status of being “at large”

while on probation because he was not confined to a prison or jail. Accordingly, incarceration is 
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not synonymous with probation.2 Since credit is awarded only for periods of incarceration, and 

Abbott was not incarcerated, he is not entitled to credit for time served while on probation. 

Taylor, 145 Idaho at 869-70, 187 P.3d at 1244-45; Climer, 127 Idaho at 24, 896 P.2d at 350; 

State v. Sutton, 113 Idaho 832, 834, 748 P.2d 416, 418 (Ct. App. 1987). We conclude the district 

court did not err by denying Abbott’s motion to reconsider the district court’s order denying 

Abbott’s motion for credit for time served while he was on probation. Accordingly, we affirm 

the order of the district court denying Abbott’s motion for reconsideration. 

Judge GRATTON and Judge MELANSON CONCUR.

 

2 Incarceration is “[t]he act or process of confining someone; imprisonment.” BLACK’S 

LAW DICTIONARY 775 (8th ed. 2004). Probation is “a court-imposed criminal sentence that, 

subject to stated conditions, releases a convicted person into the community instead of sending 

the criminal to jail or prison.” Id. at 1240.