State v. Hirshbrunner

667 P.2d 271 (1983) 105 Idaho 168

STATE of Idaho, Plaintiff-Respondent,
v.
John F. HIRSHBRUNNER, Defendant-Appellant.

No. 14858.

Court of Appeals of Idaho.

July 26, 1983.

Laird B. Stone, Ada County Public Defender's Office, Boise, for defendant-appellant.

Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., Boise, for plaintiff-respondent.

PER CURIAM.

John Hirshbrunner has appealed the denial of a motion under I.C.R. 35 for reduction of an indeterminate sentence of twenty years imposed for robbery and for carrying a firearm during the commission of a crime. He raises two issues: Did the trial judge abuse his discretion by imposing an excessive sentence? Did the judge abuse his discretion by denying the motion for reduction of sentence?

Initially, we must explain the limits of our jurisdiction to address the first issue. The judgment of conviction which included the sentencing order was a final judgment for purposes of appeal. The district judge did not retain jurisdiction of defendant under I.C. § 19-2601. Therefore, when the judgment was filed on May 26, 1982, the forty-two day appeal period allowed by I.A.R. 14 started to run. No motions affecting the judgment were filed within the forty-two day period. The time within which Hirshbrunner could have appealed from the sentence had expired at least three weeks before he filed his motion for reduction of sentence on July 30, 1982. Consequently, we are without jurisdiction to entertain, in this appeal, the question of whether the judge abused his discretion by imposing the sentence. Compare State v. Tucker, 103 Idaho 885, 888, 655 P.2d 92, 95 (Ct.App. 1982) and State v. Fuller, 104 Idaho 891, 665 P.2d 190 (Ct.App. 1983).

As to the second issue, our review is necessarily limited to the record furnished by the appellant. The record furnished in this case has shown us nothing indicating that the trial judge abused his discretion in denying the motion for reduction of sentence. The sentence does not appear on its face to be unlawful or excessive. Accordingly, we affirm the order which denied the motion to reduce the sentence.