State v. Pyne

DONALDSON, Chief Justice.

On April 7, 1980, the defendant, Robert Pyne, was charged with burglary in the second degree in violation of I.C. §§ 18-1401 and Section 18-1402. On September 5, 1980, Pyne was charged with two counts of felony bail jumping and one count of misdemeanor bail jumping. The misdemeanor charge was dropped and on December 19, 1980, Pyne was found guilty by a jury of two counts of felony bail jumping. On the date of sentencing he pleaded guilty to the burglary charge and the district judge sentenced him to the Idaho State Penitentiary “for a determinate period of five years on each count of bail jumping, and upon the second degree burglary charge. And those sentences shall run concurrently.” The defendant appeals from the convictions of felony bail jumping. In addition, the defendant appeals from the sentence on the second degree burglary conviction in the event that the felony bail jumping convictions are reversed.

The amended, amended information ¹ filed by the State set forth that the defendant was set at liberty in Blaine County but it did not allege that the crime of bail jumping was committed in that particular county. This Court has previously stated:

“It is a familiar and well-settled principle of law that the indictment must allege that the offense was committed within the jurisdiction of the court. State v. Slater, 71 Idaho 335, 231 P.2d 424; State v. Webb, 76 Idaho 162, 279 P.2d 634; State v. Cole, 31 Idaho 603, 174 P. 131; 27 Am.Jur., Indictments and Informations, § 64, p. 628, and § 76, p. 639; 21 Am. Jur.2d, Criminal Law, § 398, pp. 415-16; United States v. Johnson, 323 U.S. 273, 65 S.Ct. 249, 89 L.Ed. 236 (Del.1944).”

State v. Mowrey, 91 Idaho 693, 695, 429 P.2d 425, 427 (1967). Without allegations that the failures to appear occurred in Blaine County, the Information failed to state facts sufficient to confer jurisdiction upon the district court of Blaine County. Mowrey, supra. Therefore, the judgment of conviction -as to the two counts of felony bail jumping is reversed and the information is dismissed for want of jurisdiction.

Having reversed the felony bail jumping convictions, we must proceed to address the issue of the validity of the sentence on the second degree burglary conviction. The defendant argues that but for the two bail jumping convictions, a five-year determinate sentence for the second degree burglary conviction was an abuse of discretion by the trial court. An appellant has the burden of showing a clear abuse of discretion if the sentence is within the statutory limits. State v. Olsen, 103 Idaho 278, 647 P.2d 734 (1982); State v. Lopez, 102 Idaho 692, 638 P.2d 889 (1981); State v. Birrueta, 101 Idaho 915, 623 P.2d 1292 (1981). I.C. § 18-1403 states that the maximum sentence which may be imposed for second degree burglary is a term of five years.

The transcript of the sentencing hearing reveals that the trial judge considered the following in fixing the sentence on the second degree burglary conviction: (1) the presentence report; (2) the defendant’s character and criminal history; (3) the facts and conditions surrounding the offense; (4) the appropriateness of probation; (5) society’s interest in the case; and, (6) arguments by counsel. We conclude that the defendant has failed to show that there was a clear abuse of discretion by the trial court. We therefore affirm the sentence on the second degree burglary conviction.

Reversed in part, affirmed in part.

BAKES and HUNTLEY, JJ., concur. SHEPARD, J., dissents without opinion.

1 . Counts one and two of the information are as follows:

“COUNT ONE

“That ROBERT PYNE of Ketchum, Idaho, on or about the 8th day of May, 1979, in the City of Hailey, County of Blaine, State of Idaho, then and there being, was then and there set at liberty by court order upon the condition that he would subsequently appear at such specified times and places as the Court should order in the conduct of proceedings against him and that said ROBERT PYNE took flight in order to avoid trial or punishment and did thereby fail to appear at a trial set for his cause and specified to be held on the 23rd day of July, 1980, in violation of I.C. Section 18-7401, a felony.

“COUNT TWO

“That ROBERT PYNE of Ketchum, Idaho, on or about the 7th day of April, 1980, in the City of Hailey, County of Blaine, State of Idaho, then and there being, was then and there set at liberty by court order upon the condition that he would subsequently appear at such specified times and places as the Court should order in the conduct of proceedings against him and that said ROBERT PYNE took flight in order to avoid trial or punishment and did thereby fail to appear at a preliminary hearing set for his cause and specified to be held on the 9th of Jun[e], (sic) 1980, in violation of I.C. Section 18-7401, a felony.”