State v. Yeaton , 121 Idaho 1018 ( 1992 )

SUBSTITUTE OPINION

The Court’s prior opinion dated April 1, 1992, is hereby withdrawn.

WALTERS, Chief Judge.

The appellant, Eric Yeaton, was sentenced on February 14, 1990, to four years in the custody of the Board of Correction, with a minimum period of confinement of two years, upon his plea of guilty to aggravated battery. Following a period of retained jurisdiction, Yeaton was released on probation by the district court. On September 27, 1990, his probation was revoked after Yeaton admitted he had violated his probation by contacting the victim of the battery, in contravention of the terms and conditions of his probation. On October 4, counsel for Yeaton filed a combined motion seeking reconsideration of Yeaton’s sentence and of the order revoking Yeaton’s probation. The district court denied this motion after a hearing on October 16. Notice of appeal was filed on November 14, purporting to appeal from the judgment of conviction, the order revoking probation and from the order denying Yeaton’s motion to reconsider his sentence.

On appeal, Yeaton poses two issues. He contends the district court abused its discretion in revoking his probation, and he asserts the court also abused its discretion in denying his request to reconsider the order revoking probation.¹ We affirm, for the following reasons.

I.

With respect to the September 27, 1990, order revoking probation, this appeal is untimely because the notice of appeal was not filed within forty-two days of the entry of that order. Idaho Appellate Rule 14 provides that the time for appeal from a “criminal judgment, order or sentence” can be extended by the filing of a motion within fourteen days of the judgment. However, there is no similar provision, permitting an extension of the time to appeal, applicable with respect to appellate review of a post-judgment order revoking probation once the fourteen days following the judgment has expired. Any order thereafter entered, including the revocation of probation, is simply an “order made after judgment” which is appealable under I.A.R. 11(c)(9), but the appeal must be filed within forty-two days of that order. Under these rules, Yeaton’s motion to reconsider the probation revocation which was filed seven days after the entry of the order revoking probation did not extend the time within which to appeal from that order. See State v. Nelson, 104 Idaho 430, 659 P.2d 783 (Ct.App. 1983) (time for appeal from order suppressing evidence not extended by motion to reconsider suppression order.) Because the appeal was taken untimely with respect to the order revoking probation, we are without jurisdiction to review the merits of that order.

However, with regard to the order denying Yeaton’s motion to reconsider the order revoking probation, the appeal was timely. Consequently, we have jurisdiction to review the district court’s decision not to reconsider revocation of the probation.

II.

The district court’s determination not to reconsider revocation of Yeaton’s probation was a matter committed to the court’s sound discretion. The court’s exercise of this discretion was explained in detail by the judge when he denied Yeaton’s motion. Reiteration of the grounds stated by the court is not necessary at this point. Suffice it to say, the court’s observations reflect sound reasoning after considering the information contained in the record and the presentation made at the hearing on Yea-ton’s motion. Having reviewed the record, I am not persuaded that Yeaton has demonstrated any abuse of the court’s discretionary decision not to overturn the order revoking probation.

The order denying Yeaton’s motion to reconsider is affirmed.

SILAK, J., concurs in Part I and concurs in the result in Part II, above.

1 . Yeaton does not assert any issue on appeal concerning the judgment of conviction, evidently recognizing that his notice of appeal was untimely with respect to the judgment of conviction entered on February 14, 1990. I.A.R. 14. Nor does he raise any issue with regard to the denial of his request to reconsider his sentence, which request was untimely because it was made after the district court had entered the order revoking probation. See State v. Hooker, 119 Idaho 105, 803 P.2d 1011 (Ct.App.1991).