State v. Wilson , 100 Idaho 725 ( 1979 )

McFADDEN, Justice.

This is an appeal of the sentence imposed by the magistrate and affirmed by the district court following a guilty plea for driving under the influence of intoxicating liquors.

The defendant-appellant, Wilson, was arrested and charged with driving a motor vehicle while under the influence of intoxicating liquor (DWI). I.C. § 49-1102. The charge was brought as a felony because the appellant had been previously convicted of the same offense. The charge was reduced to a misdemeanor and the appellant pled guilty to the offense. Following his plea, a presentence report was ordered and completed. The court imposed a sentence of six months incarceration in the Ada County jail to be suspended upon the condition that the defendant be placed on two years probation, that the defendant sell all motor vehicles within ten days and that he not drive any vehicle for any reason during the two-year probation. The appellant appealed to the district court which upheld the sentence except for the condition that he sell all vehicles within ten days.

The appellant argues that the court abused its discretion by sentencing him to six months in jail and by imposing the condition to his probation. We have reviewed the record and considered the argument made by counsel and find that there was no abuse of discretion in either. It is well established that the sentence to be imposed in any particular matter is within the discretion of the trial court and will not be disturbed on appeal unless an abuse of discretion appears. A sentence that is within the limits prescribed by statute ordinarily will not be considered an abuse of discretion. State v. Seifart, 100 Idaho 321, 322, 597 P.2d 44, 45 (1979); State v. Cotton, 100 Idaho 573, 602 P.2d 71 (1979). Where a sentence is within statutory limits an appellant has the burden of showing a clear abuse of discretion on the part of the court imposing the sentence. State v. Chapa, 98 Idaho 54, 558 P.2d 83 (1976); State v. Cotton, supra. The appellant has failed to meet this burden.

The appellant in the case at hand was initially charged with a felony as provided by statute, I.C. § 49-1102(a), (e). The maximum sentence for the crime charged is five years in the state penitentiary. Following the reduction in charge to a misdemeanor, the judge sentenced the appellant to six months in jail. This is well within the maximum set by statute. It is not in excess of the allowable sentence for a first conviction and this was his second offense within one year.

In lieu of the six-month sentence, the appellant was offered a two-year probation with the conditions outlined above. The record shows that he chose to accept the conditions of probation rather than the sentence imposed. He now argues before this court that it was abuse of the trial court’s discretion to attach the condition that he could not drive any vehicle for the entire probationary period of two years. He bases this contention on the provision of I.C. 49-1102 which provides that the director of the department of law enforcement can only suspend one’s license for a period of six months on a second offense. The appellant argues that the trial court cannot impose a longer suspension through the use of probation without extreme exigent circumstances. However, the provisions of section 49-1102 relate only to the director of law enforcement’s ability to suspend a driver’s license and not to the powers of the court in imposing probation. I.C. § 19 — 2601 provides that the “period of probation ordered by a court under this section, under a conviction or a plea of guilty for a misdemeanor, indictable or otherwise, may be for a period of not more than two (2) years . ..” The purpose of probation, as agreed by both parties, is rehabilitation, and the standard of review is whether or not the probation reasonably relates to that rehabilitative purpose. State v. Oyler, 92 Idaho 43, 436 P.2d 709 (1968); State v. Sandoval, 92 Idaho 853, 452 P.2d 350 (1969). The defendant’s crime arose out of the operation of a motor vehicle and presents a serious threat to public safety. The condition of probation prohibiting him from driving bears a reasonable relationship to his crime and to his rehabilitation. See State v. Sandoval, supra. After studying the results of the presentence report which included the results of Wilson’s MOBAT test, the lower court imposed the conditions in an effort to assist the appellant in restructuring his lifestyle so that no further instances of driving while intoxicated would occur. Therefore, as the two-year probationary period does not exceed that provided by statute, and because the condition reasonably relates to the appellant’s rehabilitation, we find no abuse of discretion by the trial court and affirm the sentence imposed.

DONALDSON, C. J., BAKES, J., and DUNLAP, J. Pro Tern., concur.