State v. Benito Aguayo Diaz

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 37614
STATE OF IDAHO, ) 2010 Unpublished Opinion No. 697
)
Plaintiff-Respondent, ) Filed: November 3, 2010
)
v. ) Stephen W. Kenyon, Clerk
)
BENITO AGUAYO DIAZ, ) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
Defendant-Appellant. ) BE CITED AS AUTHORITY
)
Appeal from the District Court of the Fifth Judicial District, State of Idaho, Blaine
County. Hon. Robert J. Elgee, District Judge.
Order denying Idaho Criminal Rule 35 motion for reduction of sentence,
affirmed.
Molly J. Huskey, State Appellate Public Defender; Spencer J. Hahn, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
General, Boise, for respondent.
________________________________________________
Before LANSING, Chief Judge, GRATTON, Judge
and MELANSON, Judge
PER CURIAM
Benito Aguayo Diaz was convicted of felony driving under the influence, Idaho Code
§§ 18-8004, 18-8005(6), 18-8005(9). The district court imposed a unified eight-year sentence
with three years determinate. Diaz filed an Idaho Criminal Rule 35 motion, which the district
court denied. Diaz appeals from the denial of his Rule 35 motion.
A Rule 35 motion is a request for leniency which is addressed to the sound discretion of
the sentencing court. State v. Knighton, 143 Idaho 318, 319, 144 P.3d 23, 24 (2006); State v.
Allbee, 115 Idaho 845, 846, 771 P.2d 66, 67 (Ct. App. 1989). In presenting a Rule 35 motion,
the defendant must show that the sentence is excessive in light of new or additional information
subsequently provided to the district court in support of the motion. State v. Huffman, 144 Idaho
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201, 159 P.3d 838 (2007). Our focus on review is upon the nature of the offense and the
character of the offender. State v. Reinke, 103 Idaho 771, 772, 653 P.2d 1183, 1184 (Ct. App.
1982). Where a sentence is not illegal, the appellant must show that it is unreasonably harsh in
light of the primary objective of protecting society and the related goals of deterrence,
rehabilitation and retribution. State v. Broadhead, 120 Idaho 141, 145, 814 P.2d 401, 405
(1991), overruled on other grounds by State v. Brown, 121 Idaho 385, 825 P.2d 482 (1992);
State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct. App. 1982).
Having reviewed the record, including the new information submitted with Diaz’s
Rule 35 motion, we find no abuse of discretion in the district court’s denial of the motion.
Accordingly, the district court’s order denying Diaz’s I.C.R. 35 motion is affirmed.
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