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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 40837

STATE OF IDAHO,

Plaintiff-Respondent,

v.

ANTHONY L. CAVALLERO,

Defendant-Appellant.

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2014 Unpublished Opinion No. 443

Filed: April 10, 2014

Stephen W. Kenyon, 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THIS IS AN UNPUBLISHED 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, 

Bonner County. Hon. Barbara A. Buchanan, District Judge. 

Judgment of conviction and unified sentence of five years, with a minimum 

period of confinement of one and one-half years, for aggravated assault, affirmed; 

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

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

Appellate Public Defender, Boise, for appellant. 

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

Attorney General, Boise, for respondent. 

________________________________________________

Before GUTIERREZ, Chief Judge; LANSING, Judge;

and GRATTON, Judge

PER CURIAM

Anthony L. Cavallero pled guilty to aggravated assault. Idaho Code §§ 18-901, 18-905. 

The district court sentenced Cavallero to a unified term of five years, with a minimum period of

confinement of one and one-half years and retained jurisdiction. Following the period of 

retained jurisdiction, the district cout suspended the sentence and placed Cavallero on probation 

for a period of five years. Subsequently, Cavallero admitted to violating the terms of his 

probation and the district court revoked his probation and ordered the previously suspended 

sentence executed, but retained jurisdiction. Following the period of retained jurisdiction, the 

district court relinquished jurisdiction and ordered the originally imposed sentence executed. 
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Cavallero filed an Idaho Criminal Rule 35 motion, which the district court denied. Cavallero

appeals.

We note that the decision to place a defendant on probation or whether, instead, to 

relinquish jurisdiction over the defendant is a matter within the sound discretion of the district 

court and will not be overturned on appeal absent an abuse of that discretion. State v. Hood, 102 

Idaho 711, 712, 639 P.2d 9, 10 (1981); State v. Lee, 117 Idaho 203, 205-06, 786 P.2d 594, 596-

97 (Ct. App. 1990). The record in this case shows that the district court properly considered the 

information before it and determined that probation was not appropriate. We hold that Cavallero

has failed to show that the district court abused its discretion by relinquishing jurisdiction.

Next, we review whether the district court erred in denying Cavallero’s Rule 35 motion. 

A motion for reduction of sentence under I.C.R. 35 is essentially a plea for leniency, 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. App. 1989). In presenting a Rule 35 

motion, the defendant must show that the sentence is excessive in light of new or additional 

information subsequently provided to the district court in support of the motion. State v. 

Huffman, 144 Idaho 201, 203, 159 P.3d 838, 840 (2007). In conducting our review of the grant 

or denial of a Rule 35 motion, we consider the entire record and apply the same criteria used for 

determining the reasonableness of the original sentence. State v. Forde, 113 Idaho 21, 22, 740 

P.2d 63, 64 (Ct. App. 1987); Lopez, 106 Idaho at 449-51, 680 P.2d at 871-73. Upon review of 

the record, we conclude no abuse of discretion has been shown.

Therefore, the district court’s order relinquishing jurisdiction, Cavallero’s judgment of 

conviction and sentence, and the district court’s order denying Cavallero’s Rule 35 motion are 

affirmed.