State v. Badgley

SHEPARD, Justice.

Defendant Richard Badgley was in effect charged with one count of possession of a controlled substance. Badgley was bound over to district court for trial and pled guilty. At the time for sentencing, the district court sentenced Badgley to ninety days in jail with credit for four days served with the remainder suspended, and a fine of $2,500.00 plus attorney fees. The court further placed Badgley on probation for a term of three years. The term of probation was conditioned upon the defendant providing information to the police department regarding his involvement in the instant criminal charge, and identification of others involved in the instant crime. The defendant refused to accept the last condition of probation and “appeals” that term of probation.

The State has made no objection to this appeal, nor has the State moved to dismiss the appeal. Nevertheless, the Court perceives that there remains a substantial question as to the appealability of the actions of the trial court. The impasse which resulted from the trial court requiring the defendant to disclose information, and the defendant’s refusal to do so, has not been resolved by the trial court. Hence, we dismiss the appeal and remand to the trial court for further proceedings.

Solely for the purpose of providing guidance to the trial court, we address the concerns of the defendant and the State. In State v. Oyler, 92 Idaho 43, 436 P.2d 709 (1968), the Court had for consideration a somewhat similar situation. In Oyler, the probationary consideration was a court-imposed requirement that the defendant completely abstain from any use of alcohol. The defendant in Oyler was admittedly an alcoholic, and upon the probation revocation hearing, the probation was revoked.

Harshly unrealistic would be a rule that by acceptance a probationer waives his standing to object to a probationary condition on grounds of its impossibility. A perspective probationer, desiring freedom, is in poor position to challenge his liberator’s discretionary conduct ...

We are of course aware of the predicament of an Idaho district court faced with alternatives to free or to imprison a person totally addicted to alcohol.

Oyler, 92 Idaho at 46-47, 436 P.2d at 712-713. In the instant case the same question as in Oyler is not present. Here the prospective probationer did not waive his standing to object to a condition on grounds of impossibility, but timely objected to the condition of probation essentially on grounds of impossibility of performance because of fears of physical harm. See also State v. Sandoval, 92 Idaho 853, 861, 452 P.2d 350, 358 (1969) wherein the Court approved of the language of Oyler stating: “A condition of probation impossible of fulfillment is improper ... [a] defendant may decline probation, should he consider its terms too onerous, and demand instead to be sentenced by the court.”

In the instant case the appellant asserts that the condition of probation that he disclose information is impossible to perform because of the danger to him of retribution. The argument of appellant is buttressed by events allegedly resulting in the death of those who have in the past provided such information. We are unable to make any determination regarding those assertions by the defendant, and the record provides no indication that the sentencing court has adequately considered those assertions prior to imposing that condition of probation.

We conclude that the imposition of the particular condition of probation by the trial court is not per se erroneous when viewed in the light of the record before this Court. It is for the trial court to determine in the first instance whether the defendant’s refusal to accept that condition of probation is reasonable or unreasonable under all the facts and circumstances. Thereafter, the trial court may, in its discretion, either remove that condition or may enforce that condition of probation and require the defendant to disclose the information. In the event that the condition is held to be reasonable and proper and defendant continues to refuse to accept that condition, the sentencing court is at liberty to allow withdrawal of the guilty plea, or if the defendant continues to assert a guilty plea the trial court may impose a new sentence under such terms and conditions as it deems appropriate. Dismissed and remanded.

BISTLINE and HUNTLEY, JJ., concur. JOHNSON, J., concurs in the result.