State v. Beatey , 123 Idaho 273 ( 1992 )

SWANSTROM, Judge,

concurring specially.

I concur in the result reached herein but not for the same reasons stated in the majority opinion.

At the hearing where probation was revoked, Beatey’s counsel displayed good advocacy by urging the court to consider less severe alternatives — if the court decided to revoke probation — rather than to require Beatey to serve out the full sentence previously imposed. Counsel’s efforts evidently convinced the judge to reduce the previous five-year sentence with its fixed component of three years down to ,a four-year sentence with two years fixed.

In effect, Beatey asked for and received the leniency which I.C.R. 35 allows the court to grant upon revocation of probation. Beatey expected more leniency than he received and his counsel was willing to try again. However, I disagree that he then made an oral Rule 35 motion. Rather, he simply spoke to “notify the court that we intend on filing a Rule 35 [motion] ... I want to note that we will be moving for a Rule 35.” Three months after probation was revoked he filed the motion. I disagree that this procedure complies with I.C.R. 35.

Merely notifying the court that you intend on doing something in the future should not extend the time limits imposed by rule or statute. I would say that Beatey’s motion was untimely and the district court should have dismissed it or denied it for that reason. The court also could have denied it because the written motion was nothing more than a motion asking the court to reconsider its prior decision to grant only limited relief. We have expressly held that such renewed requests under I.C.R. 35 are not allowed. State v. Hickman, 119 Idaho 7, 802 P.2d 1219 (Ct.App. 1990). For these reasons, I choose to concur only in the result reached in the majority opinion.