State v. Avila ( 2006 )

Judge Pro Tem SCHWARTZMAN,

Specially Concurring.

I am, indeed, relieved that the majority opinion does not “condone” the Canyon County Prosecuting Attorney’s Office conduct in this case and strongly suggests that trial courts not permit this kind of “procedural gamesmanship” in the future. Were it not for the fact that Avila withdrew his motion to sever charges, which the State appeared to be ready to acquiesce to, I would be constrained to conclude that the State deliberately sought to gain a tactical advantage at trial over the accused, namely the introduction into evidence in its case-in-chief for attempted first degree murder that defendant was in unlawful possession of a firearm because he had previously been convicted of a felony.¹

In this case, the State was permitted to do by indirection that which it could not have done directly, namely obtain a continuance for “good cause” and thus not run afoul of Idaho Code Section 19-3501(2). The prosecution simply had no good cause to request a continuance four days prior to trial where the defendant had already been incarcerated for almost six months. Moreover, the State clearly knew of the added firearm charge no later than December 8 of 2003,² and could easily have filed it as an independent criminal offense to be tried separately or consolidated herein.

By utilizing the procedural sleight of hand of dismissal and refiling, see Idaho Code Sections 19-3504 and 3506, the State came perilously close to gaining a deliberate tactical advantage over the accused and violating his right to due process. See and compare State v. Davis, 141 Idaho 828, 118 P.3d 160 (Ct.App.2005). I am troubled by categorizing the reason for delay here as mere “negligence”; if that be so, then it should, at the very least, be deemed negligence with intent.

1 . When combined with another charge, the prejudice resulting from informing the jury that defendant is a convicted felon, of robbery no less, is abundantly manifest. In lieu of a severance, perhaps some type of bifurcated hearing, such as is done with a persistent violator enhancement, would be in order to protect a defendant's due process right to a fair trial.

2 . The record also reveals that the underlying robbery conviction occurred in Canyon County in 1996.